Public Bill Committee

[John Bercow in the Chair]

Clause 4

Commencement, extent and short title

Amendment moved [this day]: No. 1, in clause 4, page 2, line 9, leave out ‘months’ and insert ‘years’.—[Simon Hughes.]
Simon Hughes (North Southwark and Bermondsey) (LD) rose—

Douglas Hogg: Just in time.

Simon Hughes: Just in time is always good enough. I thank the Committee for agreeing to change the time of the sitting because it has allowed colleagues the opportunity to speak on the urgent question in the House. That was much appreciated.
The amendment would delay for two years the period before which the Bill comes into force. I put the arguments for waiting to see how the changes already announced will take place. My final argument was to do with the Government’s review. When do they expect to announce the its conclusions? The consultation finished in October. I understood that we were to expect an answer about now, and people will need to digest that. However, it is another reason for giving Parliament, the Committee and the country time to digest the implications of what has happened in the two years since the Government thought we needed to proceed.
I hope that the Committee can be persuaded that it will be sensible not to rush any changes, even if people are minded to support them in principle. I hope that we can agree that it will be better to wait, take stock of where we are, and then properly evaluate the best way to try cases of serious fraud. I hope that that is an attractive argument.

Dominic Grieve: I support the amendment. The hon. Gentleman touched on the fact that we have a new Fraud Act—the FraudAct 2006—which has not yet been fully implemented. There has also been no time for us to understand the extent to which it will simplify trials.
I mentioned an issue relating to the Domestic Violence, Crime and Victims Act 2004, which is also highly germane to the debate. Those who participated in the debates on that Act will recollect that it contains a controversial provision that attracted considerable debate, but which the Conservatives did not seek to obstruct. That provision allows for the trial of specimen counts in the case of somebody who carries out what is described as repetitive criminality. When a person has been convicted, it allows the judge alone to make a finding of fact on the outstanding counts that have not been tried but have used the same system to obtain something or otherwise to commit an offence.
The obvious example is someone who uses a credit card 500 times fraudulently and dishonestly to obtain goods or services. Rather than having to plough through all 500 counts, one can pick two or three specimen counts to be tried by jury. After the person has been convicted of those offences, other offences that plainly bear the imprint of their criminality, having been committed in the same period and starting with a specimen count at the beginning and the end of a period, can be dealt with by a judge on his own.
That system existed informally in my early yearsat the Bar. It was called taking offences into consideration. In that period, the system that we had in place was that if a person would not agree to offences being taken into consideration, the judge effectively took them into consideration if he considered that the evidence of a person’s involvement was overwhelming. That system was overturned by the Court of Appeal, which said that if a person disputed TICs, as they were called, the outstanding offences could not go into the balance of the sentencing process. The Government’s proposal in the 2004 Act was precisely to get around the problem by having a formal system of adjudication on outstanding counts. Although some had concerns about the extent to which it might usurp trial by jury, I for one considered it to be a sensible way to proceed.

David Heath: My recollection of our proceedings on the 2004 Act coincide with the hon. Gentleman’s. Although we had reservations, we all felt that that was a sensible way to proceed for precisely the reason of exposing the full criminality—I believe that is the phrase the Solicitor-General likes to use—without placing too onerous a duty on the jury. Why on earth it has not been implemented, God only knows.

Dominic Grieve: The hon. Gentleman, with whom I have shared many hours in Committee on numerous Bills, mainly in the field of criminal justice, takes the words out of my mouth because that is precisely the point I was about to move on to.

Mike O'Brien: Will the hon. Gentleman give way?

Dominic Grieve: I will in a moment when I have made another point.
Seeing that the measure was specifically designed to expose the full criminality in a way that provides reassurance of the maintenance of the principle of jury trial, it is odd that the principle and the power in the 2004 Act should have been ignored by the Government in the current proposals. The situation is all the odder because the 2004 Act has been on the statute book for some little time. The Minister will be able to tell us exactly how many months, or years, but we are talking about a considerable period. Yet I understand from a comment this morning that a particular clause dealing with this procedure, which I would have thought would have been fairly easy to implement, has not yet been implemented and is not due to be implemented until January 2007.

Douglas Hogg: Will my hon. Friend give way?

Dominic Grieve: I had better be fair and give way to the Solicitor-General first.

Mike O'Brien: I am curious because as the hon. Gentleman supported the provision, I would have thought that he understood its purpose. It seems that he did not. The particular provision to which he refers, in the 2004 Act, relates to the charging of specimen counts that deal with the same sorts of other counts which are subsequently the subject of sentencing.
The role of such a trial is to deal with a wide range of activities. They are not the same. They may in some cases be broadly similar, but they may indeed be different. Therefore the prosecution of fraud may involve the prosecution not of a range of identical offences, but a broad range of fraudulent activity which may go across a whole series of transactions, some of which may be similar and some of which may not. Therefore, what the hon. Gentleman is talking about, and what we are talking about in the prosecution of fraud, may well be entirely different things, and that is why one does not deal with the other.

Dominic Grieve: I listened carefully to what the Solicitor-General said and I am now even more puzzled by what the Government are intending to do in this Bill.

John Bercow: Order. Amendment No. 1 to clause 4 has a relatively limited scope. It concerns the commencement date and the territorial coverage, both of which matters the hon. Gentleman will be well familiar with. He may periodically animadvert to, but he may not dilate upon matters that are outwith the terms of the Bill or the amendment.

Dominic Grieve: Mr. Bercow, I am grateful to you for reminding me of the scope of the amendment, but I hope that you will be able to rule at least in order that we are dealing with delay. One of the arguments for delay is to see how the impact of the 2004 Act provisions may work in practice after it has been implemented at the end of January. I will do my best not to digress too much, but the Solicitor-General has raised an issue, to which I hope I can respond promptly and expeditiously. He suggests that in fact there is a completely different effect that is not germane to the issue under consideration. Of course, I will be mindful that I must not stray into a general debate on a clause in a separate Bill.
The Solicitor-General puzzled me because, while I accept entirely that fraud may not necessarily be a systems offence, with a repetition of the same format time over time—although it very often is—he raises a separate issue, which I hope we can properly consider without straying too far. Even if we have trial by judge alone, that does not justify lumping together in one trial a series of separate fraudulent activities. I simply suggest to the Solicitor-General that if a prosecutor attempts to do that, the rules in front of a judge alone would apply exactly as they would in front of a jury and he might well be prevented from doing that, because it could be extremely unfair to a defendant. I hope that the Solicitor-General can provide clarification on that. If we are dealing with one fraud concerning extorting money from A and one from B, I would not necessarily assume that they would be allowed to be tried together.
On the main point, it seems to me that the 2004 Act provision on specimen counts is potentially sufficiently germane to the issue under consideration that we ought to have an opportunity to see how it works. In many cases, I think that it will greatly shorten trials. Prosecutors will be able to select specimen counts in many instances of fraud which involve a system and try those quickly with the reassurance that at the end the judge will assess the full criminality by a speedy method that does not involve a jury. Therefore, it drives something of a coach and horses through one of the Government’s principal arguments. For that reason, and without wishing to digress too far into the principles of the Bill, it seems a powerful argument for saying, “Let’s wait and see how this works in practice,” before we move to a highly controversial measure that departs from our established principles and practices of trial by jury.

Stephen Hesford: I made a similar point on Second Reading. Does the hon. Gentleman accept that while a High Court judge listening to an application could take the matters that the hon. Gentleman describes into account, that would have the same effect as looking at the system of report? If in reviewing these things a High Court judge and/or the Lord Chief Justice judged it as a relevant matter and it was argued before them, they would take it into account. No doubt, if it was powerful they would refuse the application for the non-jury trial.

Dominic Grieve: I accept that the hon. Gentleman makes an absolutely valid point. When an application is made for having a trial by judge alone, I can see that it would be possible for defence counsel to argue that in such a case, as part of the other arguments that could be advanced, it could have a jury trial because we could proceed on specimen counts and have it tried separately thereafter.
Although I accept that that is a perfectly good argument, my point is simply that, for reasons that are philosophically based, I do not like departing from the principal of trial by jury. On the whole, experience shows that if a mechanism or power is provided, it sometimes ends up being used when it might not necessarily be needed. As I disagree with the Government on that, I would much prefer to give the new systems established in the Fraud Act 2006, which were touched on by the hon. Member for North Southwark and Bermondsey, and the 2004 Act the chance to bed in. We might all end up with an agreement in two years’ time between the Solicitor-General, the Attorney-General and myself, with everybody saying, “Actually, as it’s turned out, we now realise that this really isn’t necessary,” at which point we can be convivial and stop disagreeing, which on the whole is a good thing

Douglas Hogg: I would be surprised if we managed to do that.

Dominic Grieve: My right hon. and learned Friend, who has much longer experience of parliamentary life than I have, is probably right in his gentle pessimism about the state of politics and the disagreements that spring up. It is nevertheless a laudable aim, especially in this season, and I ask the Solicitor-General to bear that in mind. I am happy to support the amendment.

Douglas Hogg: With regard to what my hon. Friend the Member for Beaconsfield said, let us be clear that I never see it as my business to agree with the Government. I will stand in the way of a great majority of their policies with as much energy as possible, regardless of the season.
That is not the burden of what I want to say, however. I want to support the hon. Member for North Southwark and Bermondsey and I have four reasons for doing so. First, I entirely agree with what the hon. Gentleman and my hon. Friend said about the implications of section 17 of the Domestic Violence, Crime and Victims Act 2004. It will clearly make a huge difference to the approach of courts in criminal cases, because once a light indictment may be the charge in all but the most serious of accounts, with the rest to be taken without the jury by the judge alone, that will make a difference to the length of trials that are currently deemed to be burdensome because of their length. I say to the Government that, from their perspective, they will do well to bring in section 17 and allow considerable time for it to be worked through, so that one can see its consequences.
My second point relates to case management powers. The courts are becoming increasingly accustomed to using robust case management powers. These have been in existence for some time, but the courts inevitably take time to become fully acquainted with them and to work them through. When used by a robust judge with a co-operative prosecution, the powers can go a long way to reduce the complexity and length of trials. I hope that the judiciary would be encouraged by the senior judiciary to use the powers in a robust manner. I think that it will, and that will be relevant to the subject that we are discussing.
My third point harks back to the undertakings that were given by the former Home Secretary. We have been through the argument of whether there has been proper discussion. We have heard the Solicitor-General’s explanation, and the Committee will make up its own mind. Some of us might think that a satisfactory discharge of the undertakings that were given did not take place. Time would enable the Home Secretary of the day properly to discharge the undertakings given by his predecessor. I would regard that as a good thing.
Lastly and differently, my hon. Friend the Member for Beaconsfield made some important points about the difficulties that will occur in the court of a trial by judge alone. The issue was raised on Second Reading. Currently, the judge is a judge of law and the jury is a judge of fact. The judge makes rulings on a range of procedural matters, such as those relating to admissibility. If he decides in favour of the defence—these are only examples—previous convictions, hearsay evidence or alleged admissions never go before the jury. When the judge is judge of both law and fact, he makes those rulings and is aware of the underlying facts, whether he deems them to be admissible or not. The problem will become even greater when there is an application for public interest immunity. The hon. and learned Member for Medway (Mr. Marshall-Andrews) talked about this point at considerable length and with great eloquence. I am sorry that he is not on the Committee; it would have more fun had he been so.
There will have to be a lot of practice directions, and perhaps statutory instruments, to give effect to the procedural solutions that will be required. I would not be wholly surprised if the reason that section 17 of the 2004 Act has not been introduced is that the Department for Constitutional Affairs and the Home Office have had some difficulty in drafting the necessary consequential orders and practice directions along with the Chief Justice. A delay of two years or so would be useful in that connection. In the end, however, the proposals are thoroughly bad and any delay is worth having; after all, the thing might sink.

Bob Neill: I promise not to be over-enthusiastic this time, Mr. Bercow. I support the observations of my right hon. and learned Friend the Member for Sleaford and North Hykeham, my hon. Friend the Member for Beaconsfield, and the hon. Member for North Southwark and Bermondsey, and I shall supplement them with a couple from my own comparatively recent experience. I was not, of course, a Member at the time of the agreements, so I could not be a party to them. That gave me the opportunity to be active in the criminal justice system, at least on a part-time basis—an activity that, lest it ever be discussed in a focus group in south-east London, I should emphasise has ceased since I became a Member.

Douglas Hogg: May I encourage my hon. Friend to remain active at the criminal Bar? That will enable him to say no to the Whips whenever he chooses.

Bob Neill: I shall take my right hon. and learned Friend’s very sage advice. If he ever needs a good junior he will know where to come.

Douglas Hogg: If he ever needs a good leading counsel, I am here.

Bob Neill: I fear that my diary may get in the way of that at the moment.
My recent experience reinforces my hon. and learned Friend’s point about the desirability of delaying implementation, a point that has been well made in relation to section 17. Just before I entered the House, I prosecuted a fraud case that was not so substantial as to qualify under the serious fraud provisions, but complex nevertheless—it involved something of the order of 250 separate transactions. I have no doubt that those who instructed me would have been delighted, as would I, had I been able to use the section 17 provisions, so that we could have had a short trial on, say, the six counts that embraced the criminality. The judge would then have had the totality of the picture and been able to deal with matters in sentencing. That is why I intervened on the Minister earlier: full criminality is most important in sentencing rather than in anything else, and we can get where we need to be on sentencing by implementing section 17.
Two years’ delay would give us the opportunity to work out how to do that sensibly, because there is much good will for section 17—among practitioners, prosecutors and the judiciary. It would also give us the chance to see how the Criminal Procedure Rules 2005 work out. The resident judges and those more likely to deal with more complex cases in the courts where I practised have been enthusiastic and willing to take the greater case management role on board. There has been good co-operation from the Bar, from solicitors and from the prosecuting authorities. None the less, we are only 18 months into that regime—not very long in the life of some of the complex cases—and matters will take a little time. It would be sensible to have an additional two years to see how things work out in practice. My right hon. and learned Friend the Member for Sleaford and North Hykeham has already argued for the accompanying statutory instruments, protocols and procedures, and I shall not repeat his argument, which was well made.
My final argument for delay is that it would give time for the Government to reflect on the comment made by the Solicitor-General in response to my hon. Friend the Member for Beaconsfield. That response troubled me as much as I believe it troubled my hon. Friend, and it surprised me a little as well. The Solicitor-General said that the indictment could cover a whole range of criminal activities, some of which might be similar and some of which might not. On the face of it, that raises the question whether the Government are proposing to revisit the joinder rules.

Mike O'Brien: The answer is no, as far as we are concerned. There will of course need to be a link between charges, but they do not have to relate to the same sort of offence. The Domestic Violence, Crime and Victims Act dealt with cases in which there was replication of pretty much identical activities, so that a specimen charge could easily be used. By contrast, we are dealing here with a range of behaviour, and what is happening in fraud trials is that cases are being split and charges are being reduced, so we need to ensure that the full range of the fraudster’s behaviour can be brought before the court.

Bob Neill: I am grateful to the Solicitor-General for that clarification, but from what he said it seems to me that the normal rules about a nexus being found should apply.

Mike O'Brien: I am not implying that. Of course there will be some nexus between the charges against a defendant, but that does not mean that all the items brought before the court need to be identical. The provisions that the hon. Gentleman is addressing in section 17 relate to charges for virtually identical behaviour. We are considering a range of behaviour, which may well have a nexus but is carried out in a range of ways.

Bob Neill: I am grateful again to the Solicitor-General. That clarifies his position but does not assuage my concern—in fact, it increases it. It might be legitimate for the Government to make changes by another route, but if we are to change the approachto admissibility, that is another reason to have a good deal of time to consider the matter. It would be a substantial departure, and it would be troubling as a matter of principle if there were to be special rules on what can be joined on to an indictment for one class of crime, or indeed the one class of fraud covered by the Bill. I urge the Government to think again about that, and two years would give them time to do so.

Douglas Hogg: It would give the Government time not only to think again but to consult. The Solicitor-General’s suggestion might well require a substantial amendment to the Indictments Act 1915.

Bob Neill: My right hon. and learned Friend is absolutely right and brings me back to the point that I made before the Solicitor-General helpfully intervened. If there has to be such an amendment, which seems to me the logical consequence of what the Solicitor-General is saying, we need time to get it right, even leaving aside the principle.

Mike O'Brien: The hon. Gentleman and his colleague, the right hon. and learned Member for Sleaford and North Hykeham, are getting a little carried away with their argument. We do not need to change the nexus rules in relation to trials, nor do we need to amend the way in which indictments are drafted. We need to ensure that we can establish in court the full culpability of fraud defendants so that justice can be done. I notice that the hon. Gentleman winks at his colleague because he has drawn me to clarify the situation, which I hope I have done. I hope that he accepts my position.

Bob Neill: I am grateful to the Solicitor-General, which I am becoming used to. With respect, he has not answered my principal point. If we are to move towards putting a defendant’s total criminality before one tribunal of both fact and law, it is important that we get the procedural rules correct. To start the new system only two months after the Bill is passed and without consultation, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, seems dangerous even from the Government’s point of view, leaving aside our objections to the proposal. If the Government are to make this change then, for heaven’s sake, they must take the time to ensure that they get it right. That is why I beseech the Government to reconsider being so arbitrary about the Bill’s commencement.

Joan Ryan: We have had a lively debate. I was struck at the beginning of our proceedings this afternoon by the sight of the hon. Member for North Southwark and Bermondsey. He rushed in and could hardly draw breath before he urged us not to rush. I assure him that we are not rushing and that we have given the matter long and full consideration. Our debate this morning demonstrated that, and the problem in question has been recognised and considered for not years, months or days but decades. The idea that we have rushed into anything is, to say the least, an exaggeration.
The hon. Gentleman and other hon. and right hon. Members seem to cleave to the idea that if only we were to wait long enough, the need for serious fraud trials to be considered without a jury would somehow disappear. The Government do not share their optimism. It is recognised that the problem has existed for at least20 years and we do not believe that such measures as the Fraud Act 2006 or the Lord Chief Justice’s protocols in 2005, although admirable, will be sufficient to deal with the issue.
Right hon. and hon. Members have asked that we wait for some of the other measures. As has been said, the Fraud Act comes into force on 15 January 2007. As I understand it, the Act deals with the substance and definition of fraud, as opposed to the process by which we deal with it, which is addressed by the Bill before us. I reject the points made my Opposition Members about waiting until the Act is in force.

Dominic Grieve: Does the Minister not agree that those two things are linked? One of the arguments that is made persistently in fraud cases—I use that word generically because, sometimes, such cases might concern obtaining property by deception—is that the concepts are complex. With the support of the other place and both sides of the House, the Government have tried to simplify the law in relation to fraud, which ought to make the trials themselves simpler. That goes to the heart of this legislation.

Joan Ryan: That something is linked does not mean that it is the same, or can be dealt with in the same way.
An important point was made on Second Reading, to which I am sure that hon. Members were listening, but I shall reiterate it because otherwise Committee members, and anyone reading these proceedings, might assume that we have not adopted a strategic approach, and that this problem has just leapt in front of us and did not exist before. When my hon. and learned Friend the Solicitor-General opened Second Reading proceedings, he stated:
“Our policy has four main strands. We recently took through the House the Fraud Act 2006”—
that has been referred to—
“which will create a statutory offence of fraud and modernise much of our law on deception. Secondly, the Government have also carried out a cross-departmental review of fraud to examine the prevention, detection, investigation, prosecution and punishment of fraud.”
I was asked about that. He continued:
“We published a report in July, and consultation finished on 27 October. We are now considering our response.”

Simon Hughes: Under the timetable that the Minister has given us, a cross-departmental report is likely in January. We have seen the consultation document. Does she accept that it is likely to suggest improvements to the process in order to increase the chances of a conviction? They are all good ideas and none of them requires a change in the method of trial, but other things will improve the process.

Joan Ryan: I am pleased that the hon. Gentleman thinks that they are good ideas. I am sure that good ideas will come forward. However, that in no way contradicts or undermines what I said about the four-pronged approach—the “four main strands”. Such things work together and I think that a strategic approach has many advantages. We need to plumb that at the outset, not in retrospect. That is what I was talking about.
The third strand deals with the new protocols and procedures for our courts, which have been referred to, and case management. I shall return to what the Solicitor-General said on Second Reading:
“The Bill is the fourth element. It will reform our criminal justice system to enable it more effectively to try a small number of serious and complex frauds without a jury.”—[Official Report, 29 November 2006; Vol. 453, c. 1088.]
I repeat the point about “serious and complex frauds” because they are the point of the measures. Although all the other measures will help in various ways in lots of other cases, we do not believe that they will address the burdensome nature of serious and complex fraud trials.
Having said that, let me respond to the point made by the hon. Member for Beaconsfield about how the Domestic Violence, Crime and Victims Act 2004 applies, and why its provisions have not been implemented. It was necessary to make rules of court, and those took effect in England and Wales in November and will apply to Northern Ireland from January 2007. The relevant provisions of the 2004 Act will therefore be commenced in January, and they are not aimed at section 43 cases—cases of serious and complex fraud. On that point, I return to the comment of my hon. and learned Friend: fraud trials may relate to dissimilar or similar acts, so the specimen credit card fraud cases given as examples by the hon. Member for Beaconsfield might not be relevant to cases of serious and complex fraud. It is not argued that that Act will deal with the issue that this Bill attempts to address.
Mindful of your warnings about straying too far, Mr. Bercow, I shall attempt to rein in my comments and return to the amendment tabled by the hon. Member for North Southwark and Bermondsey. He said that it sought to change the commencement period from eight weeks to two years. I refer him to the point made this morning by the Solicitor-General. Commencement of the Bill will amend section 43, but commencement of section 43 itself depends on a commencement order under the 2003 Act, so the hon. Gentleman need not get too worked up about undue haste.
Let me say a word on a couple of other issues, so as to ensure that I have answered as far as possible every point that was raised. I think that it was the hon. Member for Beaconsfield who talked about convictions and the role of the judge and, in a case with a jury, of the jury. The Lord Chief Justice will need to consider procedural rules, but there is not a problem in, for example, the Diplock courts, or for district judges and magistrates, who try cases without juries. Examples of endurance trials already exist, so that addresses that point.
Questions were asked—also, I think, by the hon. Member for Beaconsfield—about the way in which prosecution applications under section 43 will be made in circumstances involving sensitive information. That relates to the point that I have just made. Concern has been expressed about the potential for unfairness to defendants in cases in which a judge considers a public interest immunity application and then goes on to conduct the trial. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, lay magistrates, district judges and others hear public interest immunity applications and then go on to find the facts. I hope that that lays that point to rest, or at least answers it, even if it is not a response with which the hon. Gentleman is satisfied.
I believe that I have covered the points that hon. Members raised about measures that we have taken in our overall strategy and shown why the fourth part of that strategy is important. The Bill should not be delayed, and it cannot be replaced with the other measures that we are taking. The Government’s unshaken view is that, in a small number of serious and complex fraud cases, trial without a jury is the best solution. We remain committed to the provision in section 43 and can see no grounds for delaying its introduction yet further. I therefore ask the hon. Member for North Southwark and Bermondsey to withdraw the amendment. If he does not, I will urge hon. Members to vote against it.

David Heath: On the basis of that response, I hope that my hon. Friend the Member for North Southwark and Bermondsey will not withdraw his amendment. It seemed to me that in setting out the Government’s strategy, the Minister made it abundantly clear that it is based on an ex cathedra statement that they will proceed irrespective of the evidence and the effect of the other measures that are being taken.
It has always been suggested that the Bill is needed because of the complexity of the cases in question and the strain that they put on juries. However, the Minister said clearly that the fourth element of the Government’s strategy—to proceed with the removal of trial by jury—will be unaffected by the other measures being taken. She said that even if the existing legislation, the changes to procedural rules and the redefinition of the offence of fraud were proved substantially to reduce the complexity of cases and the time that they take, they would have no effect on the Government’s intention to remove the jury from trials in complex fraud cases.
I am left to conclude that the Government’s intention lies in a vacuum and is not based on any evidence of a requirement. It is certainly not based on the view, which is held on these Benches and was displayed by some Labour Members on Second Reading, although possibly not those in the Committee, that jury trial is a good in itself. It is part of the judicial system of England and Wales and should not be dispensed with unless there are very strong arguments for doing so. Such arguments have not been adduced by the Minister, who is impervious to any rational explanation involving other measures that have been taken. I hope that my hon. Friend will not withdraw his amendment and that we shall have the opportunity to divide on it.

Simon Hughes: Even if I had started to wobble, my hon. Friend would have prevented me from going too far. I was not tempted to wobble, because I have listened carefully to the Minister and the Solicitor-General, as I did on Second Reading. I wish to deal with the matter, because there is no point in failing to confront the issues put forward by the Government.
There are two up-front, objective reasons why the Government are still pushing for this fourth strand in their set of measures. There is also one unspoken reason, which I believe might be the motive behind the two spoken reasons. The three strands that are not to do with trial by jury are on case management, procedural changes and so on. They address, in part, one of the Government’s two objectives, which is to get rid of the burdensome nature of trial by jury. I understand that argument. If you, Mr. Bercow, I, or anybody else were called for jury service, as we are eligible to be, and found ourselves on a case that was to last for six months, it would be burdensome—more so for some people than others. I am not naive about that. Some of the changes announced in the past two years are specifically intended to address that point. Let me give the Government the objective evidence—it was not concocted either by me or the Solicitor-General.
We had the report on the Jubilee line case. Quite rightly, the report, produced by Her Majesty’s chief inspector of the Crown Prosecution Service, a Government appointee, looked into why that case went wrong.

Stephen Hesford: Will the hon. Gentleman give way?

Simon Hughes: Bear with me.
I concede that the executive summary of the chief inspector’s report stated:
“Seen from the perspective of the jury, the trial was a quite intolerable burden.”
Clearly, the inspector looking into the Jubilee line case said that it was burdensome for the jury.
The hon. Member for Beaconsfield quoted the evidence of jurors, which, unusually, was in the public domain because the trial was discontinued. The inspector reported that the trial was burdensome not because the jurors did not understand it or because the issues were burdensome but, putting it bluntly, because the trial went on for so long, in an uncontrolled way, and the judge did not appear to have a full grip of the case. Gradually, things started unwrapping.
There have been burdensome cases.

Stephen Hesford: I am obliged to the hon. Gentleman for giving way. He was, I believe, in the Chamber on Second Reading; indeed, he led for the Liberals. The Solicitor-General made it plain, time and time again, that in persuading people that we need these measures, the Jubilee line case was not relied on. It seems to me to be wrong for the hon. Gentleman to waste the Committee’s time quoting a case on which the Government did not rely, and which is not germane to proceedings.

Simon Hughes: If the hon. Gentleman will allow me, I had not finished my point.
There have been burdensome cases, but the Government have supported measures introduced by the Lord Chief Justice to deal with that burdensome risk.
The protocol, which is only a year and half old, in setting out the proposals, states:
“Central to the Protocol is its identification of a consensus that no trial should be permitted to exceed three months or an outer limit of six months, save in exceptional circumstances.”
Those are not my words; they are Lord Woolf’s, and he elaborates on that point.
One of the things that has been done since the Jubilee line trial is the introduction of a protocol that says, “We will have shorter trials. This is the way to do it. In procedural terms, here is the way in which you can have much shorter trials.” That is one of the things that will lift the burden. In fact, the Government have argued that the main element of the burden is the length of trial.

Douglas Hogg: One of the suggestions that the Lord Chief Justice contemplates is that the indictment should only cover the central material on which the Crown needs to rely, and that the concept of full criminality should play no part in the indictment.

Simon Hughes: That is correct and the right hon. and learned Gentleman made the point well. We have discussed in the debate and in others why the “whole criminality” point is not valid. It is not compatible with any other part of the criminal justice system, nor is it necessary to secure justice. That is the issue.
I asked the Solicitor-General, and he gave me a perfectly reasonable answer, to show us why we have a continuing problem post the Jubilee line case. The case is relatively old and has not been relied on. The Solicitor-General cited three cases that he said gave rise to the problem being one that the three strands are not sufficient to address, and that a fourth strand is required. He said:
“There is a serious history of such proposals, and eminent judges have made reports”
but
“Since the passing of the Criminal Justice Act 2003”
—so, since the last time we looked at these issues—
“there has been further evidence of the importance of introducing such a measure. I referred to cases that had to be severed. In the Talbot Village Trust case, completed in 2004, the trial judge had to order the prosecution case to be reduced for management reasons. Again, in the Versailles case of 2004, which involved Cushnie and others, the judge ordered three counts against one of the defendants to be severed in the interests of trial management.”—[Official Report, 29 November 2006;Vol. 453, c. 1132.]
He also mentioned a third case, that of the Global Wildlife Trust.
Were those cases evidence of an unsuccessful outcome? I was assisted by a young Mr. McCracken—a lawyer of the future working in my office. It would be a slight overstatement to say that his research required great skill, because the availability of the web and the Serious Fraud Office website enabled us to find a summary. With him looking up the cases for me, I discovered the details. Neither case was a failure.
The press release concerning the first, dated16 February 2004 and entitled
“Fraud on charity hidden in £15 million building contracts”
said:
“Three construction industry professionals were convicted today at Winchester Crown Court for defrauding the Talbot Village Trust in Dorset of £3.5 million through manipulation of building contracts. The fraud related to six contracts totalling £15 million and involved invoicing for work not done and disguising inflated professional fees in the contracts.”
I accept that that case had gone on for a relatively long time; it had started in the magistrates court in 2001. However, although two defendants were acquitted, three were convicted. Unless the Minister is going to say that a case that results in any acquittals is a failure—not an argument that I hope anyone would make—the serious punishments that were awarded for those offences prove that the case did not, in fact, fail.
The other case was the Versailles case concerning Carlton Cushnie, who is based in my constituency. The Serious Fraud Office press release of 29 June 2005 was entitled
“The Versailles case: Carlton Cushnie ordered to pay”
and said:
“Carlton Ellington Cushnie was ordered today at Southwark Crown Court to pay over £10 million by way of confiscation in relation to the Versailles fraud.
This hearing arises from Cushnie's conviction on 25 May 2004, and sentencing on 8 June 2004 when he received six years imprisonment and was disqualified from acting as a company director for 10 years. The sentence was handed down for conspiring to defraud private investors who provided monies to Versailles Traders Limited and Trading Partners Limited. The earliest Cushnie can be released from prison is 8 June 2007.”
So the two cases that were readily accessible on the SFO website were not unsuccessful. Convictions and significant imprisonment were secured in both, and one secured a huge financial penalty. There were two acquittals in one of the cases, but it was possible to present to the juries both the seriousness of the cases and the breadth of the criminality involved. The juries—one in Winchester and one in Southwark—reached guilty verdicts.

Mike O'Brien: I shall not try to make my point by way of intervention, and we shall perhaps have the opportunity to deal with it later. I shall merely say that, in the case of Talbot Village Trust, the judge ordered that the scope of the prosecution case should be reduced for trial management reasons. In the SFO’s opinion, that reduction made the case appear disjointed, and undermined the prosecution case in a number of key areas, although it was none the less successful. There is capability to succeed, but the SFO was concerned about the way in which the case proceeded as a result of the decision.
I am conscious of your strictures, Mr. Bercow, so I shall not go into detail on the Versailles case on intervention. In that case the judge ordered one of the three counts against Cushnie to be severed in the interests of trial management, and the SFO again felt that that did not allow the jury to see the full picture.

Simon Hughes: This sort of exchange is valuable. However, the whole history of both cases—the committal from the magistrates court, the commencement of the trial and the judges decision on trial handling—came before the Lord Chief Justice’s direction of last year. Both cases also came before the report of Her Majesty’s inspector into the Jubilee line failures. My point is that we have learnt the lessons from the system failures that led to long trials and burdensome implications for jurors. We have not, however, learnt the lessons of the past year and a half—since the beginning of the changes. Those changes will reduce trial lengths substantially in nearly every case, but without—in the view of the judges and the SFO—prejudicing the generality of the case on guilt that is presented to the jury.

Dominic Grieve: The hon. Gentleman’s point is important. He may join with me in inquiring about something on which the Solicitor-General may be able to help us later. A six-year sentence is a very long one by modern standards, particularly for fraud. If it is being suggested that the level of criminality was not reflected in the final outcome of the sentence, it would be interesting to know the view of the Solicitor-General on the sort of sentence that the total criminality ought to have attracted. I really wonder whether it would in reality have been very much.

Simon Hughes: Just one other point, although we could turn this into a seminar on recent successes in SFO cases. I am conscious, Mr. Bercow, that you will not allow us to do so.

David Heath: It would be a useful precedent.

Simon Hughes: Yes, a useful extra seminar that we had not anticipated. I will just pick up this point; in the Winchester case, there was a unanimous verdict by the jury. So, that was not one of those cases that struggled to get a verdict, and I share the concern of the hon. Member for Beaconsfield that the evidence and argument do not suggest that justice there was letting off those people lightly, since they were not.
That leads to my last point. The unspoken reason motivating the Government in part, which sort of slipped out on Second Reading, is that they think convictions will go up if there is no jury. If that is in their minds explicitly or implicitly, then it is a worrying thought. There are a couple of obvious points to make if that was their thought.
We all want to have criminals dealt with by the justice system, and to be convicted when they commit offences. Serious criminals need to be convicted and punished seriously. When you represent a constituency like mine, where there is still a lot of poverty and some extreme affluence, so near to the City of London, not a few people have come to see me over the years saying, “Why is it that the heavy hand of the law comes down on little people for small offences”—that is not my phrase, but other people’s—“when the big crooks working in the City or elsewhere are not being caught?” 
So I am up for these people being prosecuted, with the SFO doing its job properly, serious investigation being pursued and people being brought to book and locked up when they deserve it. However, if the suggestion is that we are not getting enough guilty verdicts, the evidence does not support that and the philosophy is fundamentally flawed.

David Heath: Another thing occurs to me in what my hon. Friend was saying about these two cases that the Solicitor-General relies on as evidence of the need for change. For his proposition to be correct, then there must be an assumption that the Lord Chief Justice would produce new rules of procedure and new guidance for trials without a jury as opposed to trials with a jury. The purpose of those new rules—[Interruption.] Well, the Solicitor-General is looking puzzled, but otherwise the severance would be exactly the same in a trial before a judge alone as with one before a jury. If that is the case, it means that having got the length of complex trials down, by using the Lord Chief Justice’s rules, the Government now propose to increase the length of trials—and, therefore, their cost and complexity—once the jury was safely out of the way. Does my hon. Friend believe that is the Government’s intention?

Simon Hughes: The debate could be extended, but without putting words into his mouth what my hon. Friend implies is that we would, objectively or rationally, have to take a different view if we had all seen a report written by the Serious Fraud Office saying that since the experience of the jubilee line case and Her Majesty’s inspectors’ report, and since the Lord Chief Justice’s protocol, and the experience of recent trials, then in the light of all those experiences it was still of the view that the new procedures were not delivering the outcomes that everybody has sought. If that came in the annual report of the Serious Fraud Office, then we would all have to take notice and probably say, “We’ll give it a bit more time, to see if they bed down a little longer”. We would be arguing for time. However, that is absolutely not the case, and the last of these cases saw a conviction only in June 2005.
To do the Solicitor-General credit and to be fair, I will observe that I have not gone into similar detail on the last of the three cases that he cited—the Global Wildlife Trust—for the simple reason that it was not as easy to find out the details from the same place. So, of course, I shall wait to hear from the Minister. However, the Solicitor-General conceded that it was not that the prosecution was not successful—the implication was that it was successful—but that the size of the case was limited. So we return to the argument of whether the full criminality was exposed to the court.

Joan Ryan: To help the hon. Gentleman, he might like to know that in the case that he could not find—the third one on the Global Wildlife Trust—the severance of the indictment meant that one defendant was not tried in the first and, so far, only trial, and that it is uncertain when, if ever, the second trial will take place. I think that that is relevant to his remarks—one of the trials did not reach a satisfactory conclusion, in the interests of justice.

Simon Hughes: My wise hon. Friend the Member for Somerton and Frome, one of the omnipresent three wise men, said that it is not surprising that we could not find the information as the last trial has not happened yet, which is, of course, true. I would not dare to contest that.
The serious point is that we could make a judgment only if a trial went ahead. However, in my experience, from my more limited number of years at the Bar, prosecuting and defending, there is a severance of many criminal cases. One of the first cases that I prosecuted for Thames Valley police was for affray on Blackbird Leys estate in Oxford, which occasionally features in debates on criminal justice in this place. Lots of people participated in the case and in the end there were two trials because it was easier for case and jury management. They were related to the same offence, but none the less that was the decision.
That is quite common in all sorts of cases. We look at how we can best manage the case and consider things such as the number of defendants, bundles of papers and the length of time. That is not unique to fraud cases and it is not a sign of weakness. Of course, we would not get a whole picture of life on the Blackbird Leys estate over 24 hours if a trial was split into two, nor the whole story of a company and its activities over a lifetime of 10 years, but that does not prevent justice from being done. The question is whether justice is done.
My proposition is simple: it is neither timely nor reasonable to implement the Bill. The Minister made a procedural point and I shall end with a substantive one. She told us not to worry because two timetable triggers remain and that if the measures become law two months after the passage of the Act, it is all right because a commencement order would yet to be laid. However, my hon. Friend and I have spotted the flaw. The commencement order would not require the assent of both Houses of Parliament by affirmative resolution. So that is not a sufficient protection. Although the Minister might delay for a day, a week, a month or even a year before the introduction of the commencement order by the Attorney-General, I am afraid that we saw through that claim.
Finally, on the four strand approach, there is a consensus that three of them are perfectly acceptable. The fourth would change a fundamental element of British criminal justice. We should not change a system that has the confidence of the people and delivers a very high success rate—we should not even consider it, unless everything else has been tried, which we have not yet done. Even if we had, some of us would still need persuading. So we are certainly not persuaded.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Question accordingly negatived.

Motion made and question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 7.

Question accordingly agreed to.

Clause 4 ordered to stand part of the Bill.

New Clause 1

Application by defendants for certain fraud cases to be conducted without a jury
‘In section 43(2) of the Criminal Justice Act 2003 (c. 44), after “prosecution”, insert “, the defendant, or any of the defendants in cases where there is more than one defendant,”.’.—[Mr. Hogg]

Brought up, and read the First time.

Douglas Hogg: I beg to move, That the clause be read a Second time.
The object of the new clause is to enable the defendant, or a defendant if there be more than one, to make an application for a trial without a jury. At the moment, as the Committee knows, an application for a judge-alone trial under section 43 can be made only by the prosecution. That raises the question: why should a defendant not be able to make such an application? Itis my recollection that Lord Justice Auld, in his recommendations, contemplated that a defendant should be able to make an application. What I seek to do, therefore, if we must go down this road, is to ensure parity between the prosecution and the defendant.
The question that we need to address is whether there are circumstances in which a defendant might wish to have a judge-alone trial. The answer is yes; I can contemplate at least three sets of circumstances in which that might happen. The first, which will occur increasingly often thanks to changes in the legal aid rules, will occur when defendants pay for their own legal representation. A defendant might well conclude that it would be quicker to hold a trial without a jury. If it is quicker, and he is paying for his own representation, it will be cheaper for him. That might be the sort of situation in which a defendant would wish to have a judge-alone trial. There are parallels in cases of libel, in which defendants can elect judge-alone trials.
The second circumstance that might arise is that in which a defendant might conclude that he is likely to get a more favourable hearing from a judge. I think that that would be a fairly exceptional situation, but I can think of it arising in some circumstances. A defendant may be of a class that would make him think that he would get a less sympathetic hearing from a jury than from a judge. Let us be honest about this: if one was a professional, middle-class person and an alleged white-collar fraudster, one might feel that one would get a thoroughly unsympathetic hearing from a jury. That has been so in some libel cases, in which defendants have come to that conclusion. One could ask oneself whether the same is not true of politicians. We are said to be one of the least popular groups of individuals in the land, which may well be true. If I were foolish enough to start a libel action, I would much rather have my case tried before a judge alone than before a jury and I can contemplate situations in which, if I were tried for a serious fraud case, the same would apply, simply because we are the kind of people that we are.
There is a different situation that is equally relevant, which depends on the nature of the offence. Let us say that a defendant is charged with milking pension schemes. We know how sensitive the public is about pensions schemes, and rightly so. A defendant might come to the view that such charges would get an unsympathetic hearing from a jury. Let us consider Farepak: I am not suggesting that any fraud has been committed, but for the purpose of illustrating the argument, let us assume that there was an allegation of fraud associated with Farepak. I can very well see that a defendant who was charged with that kind of offence might think that he would get a pretty rough ride from a jury. There are cases in which a defendant might choose a judge-alone trial, because he reckoned that he would get a rough ride from a jury.
The third class of cases is related to the first, but nevertheless stands alone. I can contemplate a situation in which a defendant might conclude that the complexity of a case was so great that it was best dealt with by a judge, on the basis that the jury would not properly understand it and would not return a safe verdict. Let us consider cases of long-term fraud involving lots of people from abroad. Such cases would involve a mass of documents, much of which would have to be translated from Arabic, for example, and the original text of which would not be comprehensible. Furthermore, and more damagingly from the defendant’s point of view, most of the witnesses would speak in Arabic and would have to have their evidence translated by an interpreter. I have done a number of cases in which interpretation was essential and I can say that one rather loses the thread of the evidence when it comes through an interpreter. If there are a lot of witnesses whose evidence is being interpreted, there is a real danger of losing the plot, however good the interpreter may be—many of them are quite good in this context. In those circumstances, I can imagine a defendant saying, “This is a jolly difficult case because of the special reasons that I have advised, and I would be happier if my case were determined by a judge alone.”
I am against this Bill and I hope it fails, but now that we are here we have to try to improve the beastly thing if we can. It is difficult to see an argument of principle for the defendant not being in the same position asthe Crown. It was the view of Lord Justice Auld that the defendant should be in that position and that is the proper way forward. I therefore commend new clause 1 to the Committee.

David Heath: I listened carefully to the right hon. and learned Gentleman, and I found his arguments persuasive to an extent. I am inclined to support his views.
On equity, if there is to be a trial in which the forces on either side are equal under the law, it must be right in principle that the application for a trial without jury should be open to both the prosecution and the defence. I share the right hon. and learned Gentleman’s view on circumstances in which the defence might consider it in the interests of the accused to go to a judge-only trial.
He mentioned the complexity of a case, but the crucial issue is the complexity of the defence. Much of our discussion has been to do with whether the complexity of the prosecution case is understood by a court, but there are instances in which the complexity of the defence in a fraud trial will raise the question whether the jury can understand it fully. My view is that, if both the defence and the prosecution do their work properly, that will not be an issue. However, if there is not a requirement for a jury to be in place, it will be perfectly proper for the defence to argue to a judge that the complexity of the defence is such that it should be heard before a judge only.
That will be particularly true in cases on the cusp of sharp practice and dishonest behaviour in which the defence argues that the defendant’s behaviour was reprehensible in the view of the common man—and therefore of the jury—and not sound business practice, but was not fraud because it was not dishonest. At that margin, a defendant might feel better able to explain their position to a judge than to a jury.
Nothing that I say should be taken as an expression of a view contrary to that which I have expressed throughout progress of this Bill and preceding Bills. I believe that the jury is an essential part of the process, but I can conceive of a position whereby the defence would want a judge-only trial.
My last point returns to principles. I have mentioned the principle of equity, but there is a further principle. As my hon. Friend the Member for North Southwark and Bermondsey said when speaking to the previous amendment, the Solicitor-General, in presenting the case for the Bill on Second Reading and in Committee, has come perilously close to saying that one of its purposes is to secure more convictions, because more people will be found guilty by a judge than by a judge and jury. Considering that one purpose of it is to replace the finding of fact by a jury with the finding of fact by a judge on the basis of the same evidence, that is a worrying principle on which to work.
That concern could be dispelled at a stroke if the Government were to accept the new clause, which would make it clear that not only the prosecution but the defence could expect the interests of justice to be best served by a court without a jury. Nothing could better exemplify that than a clear and explicit statement that the Bill is not purely a device to secure more convictions but is intended to serve the best interests of justice. For all those reasons, I shall be interested to hear the Solicitor-General’s response to the right hon. and learned Gentleman, who made an interesting point.

Dominic Grieve: Some Members will recollect that when we considered the Criminal Justice Bill in 2003—it introduced section 43, the matter now under consideration—we considered whether jury trial should be restricted for several different categories. One of the principal arguments at the time, and one on which we persuaded the Government to back down, was over the Government’s wish to give a general right to the defendant to obtain a trial without a jury. The right could be denied in cases where it was thought that the defendant was trying to avoid the wrath of the public; that is, the defendant might consider that a compliant judge would be kinder than a jury. I took grave exception to the principle and argued against it. As a result, it was eventually defeated in the Lords and the Government dropped it.
We also considered whether to get rid of juries for cases in which jury nobbling had taken place, or where there were grounds to fear that it might take place and justify, in effect, a Diplock court because the trial could not take place with a jury. For obvious reasons, the prosecutor would normally seek such a ruling, because, on the whole, defendants would not seek a ruling on the basis that they would nobble their own jury, albeit sometimes a defendant fears that somebody else—for example, a co-defendant—might nobble the jury to his prejudice.
Leaving that to one side, I have never been keen on the idea of defendants being able to opt out of jury trial. However, having said that, my right hon. and learned Friend the Member for Sleaford and North Hykeham made a good case, because what is sauce for the goose is sauce for the gander, and there is a lack of equality of arms in a process in which only the prosecution can argue that the seriousness, complexity and length of a trial is such that the jury should be removed, and the trial should take place by judge alone. If the Government are arguing the principle that it is offensive to good justice that such long, complex trials should be allowed to take place with a jury, I cannot see why the defendant should not be allowed to make that argument as well.
Moreover, if we are to end up with multi-handed trials, which often happens—it is common for four, five, six, seven or eight defendants to be tried for fraud together—when the case goes before the Lord Chief Justice on an application by the prosecution for trial by judge alone, it must at least be possible that different defendants will have different views on the matter. Some defendants may welcome the idea of trial by judge alone, but others may argue that they wish to be tried by a jury. Therefore, while the system in the Bill allows such an argument to take place, it seems to be a little defective, whereas the new clause tabled by my right hon. and learned Friend would establish straightforwardly and clearly that all parties can argue one way or the other. I do not think it beyond the bounds of possibility that there might frequently be circumstances in which all sorts of arguments would be made from different angles.
To take an example, the Solicitor-General raised the issue of the full criminality being exposed. One consequence of the exposure of full criminality, as an example, is that it frequently happens—I have been involved in such trials with juries—that there are two principal defendants and a third defendant whose role in the overall alleged fraud is pretty minimal. He, however, has to sit through months of evidence, while his barrister picks up substantial fees for doing absolutely nothing because it is not until day 56 of the trial that he finally comes to the witness box to give the bit of evidence that concerns his client.
In such cases, there might well be arguments for severance, and one of them might be that one lot of defendants says, “It is a long and complex trial. We would like it to take place in front of a judge alone, because that would shorten it,” whereas the other defendant says, “This is a long and complex trial, and it will be made even longer if I have to appear in front of a judge alone; I want it to be severed, and I want to argue to be tried in front of a jury, because my case is a short and simple one.”
I give that by way of illustration. I might add that that argument could even take place as the Bill stands. Given that one can easily foresee a multiplicity of arguments, I must say that my right hon. and learned Friend has made a powerful and compelling case and I will be happy to support him if the matter goes to a vote. I see that the Solicitor-General has a full reply to make. It might be that on this issue we have persuaded him that there is merit in the point that is being made.

Mike O'Brien: I have in my hand the original clause that the Government included in the 2003 Bill. At that stage, it was our intention that there should be an ability for the defendant to waive jury trial. In that case, we also provided for defendants taking different views by giving a veto to a defendant. I am curious, because the Conservatives strongly opposed the provisions at that time and it seems that they nowtake a somewhat different view, as do the Liberal Democrats. Can the hon. Gentleman say whether, if we introduced a provision such as this, which we had not intended to do, the Conservatives—and, perhaps, the Liberal Democrats—would be disposed to support it?I might well be disposed to give it serious consideration.

Dominic Grieve: I fairly laid out, I hope, two key points. First, my principled opposition to opening a door that allowed people to elect trial without a jury. That is what was debated during the passage of the 2003 Bill, and it is something to which I remain resolutely opposed because I believe in jury trial. I made that clear then, and I am sure that it coloured my approach to the various areas in which the Government wanted to restrict trial by jury. However, I accept that if clause 43, which I do not want to see on the statute book, is to be placed on the statute book, then there may be an argument—the one put forward by my right hon. and learned Friend the Member for Sleaford and North Hykeham—for saying that what I have described as fairness or sauce for the goose and sauce for the gander demands that a defendant should be able to make a similar application.
Although, as I indicated, I can see that that argument could take place in cases in which there is more than one defendant, it ought to be possible, too, if there is a single defendant. I do not know what the Solicitor-General wishes to do about that. In any event, it is not my amendment; it is that of my right hon. and learned Friend, who will doubtless respond shortly. However, we could leave it for the moment if the Government wished to return to the matter on Report; it could be considered in another place; or we could all reflect on it.
My right hon. and learned Friend makes the compelling case that if we allow one party to ask for something in those circumstances, once we have conceded the principle and even though we did not like doing so, there will be a strong argument for letting the other party make a similar application. I am quite prepared to consider it, although it may be wise to reflect on it briefly before trying to reach consensus. As it is not my new clause, however, I defer to my right hon. and learned Friend—and to the Solicitor-General.

Mike O'Brien: It has been an interesting debate. The proposal that the Government put forward in the Criminal Justice Act 2003 was similar to that being put forward as a new clause by the right hon. and learned Member for Sleaford and North Hykeham. If my recollection serves me well—I stand to be corrected—the Conservative party strongly opposed the idea, as did the Liberal Democrats. They now support the provision.
It had not been the Government’s intention to revive the proposal for the defendant to have a waiver on jury trial. However, I am more than happy to reflect on the idea. Some time ago, the Government would have been disposed to accept not the broad recommendation of the Auld review for a general waiver but a specific provision that would give a defendant a veto on a non-jury trial, so that if one defendant wanted a jury trial and the other did not, a jury trail would take place, unless the prosecution had made its application in the normal way.
That is how we dealt with it, but I have been led to believe by the substance of the debate that Opposition Members are seriously prepared to revisit the matter and would be prepared to support a Government amendment on report. I do not know whether we would be in time to do it on Thursday, but we might be prepared to table a Government amendment after due reflection and some discussion. I give no undertakings at this stage; I say only that I am prepared to reflect on the matter and discuss it.
I have listened with care to the proposals of the right hon. and learned Member for Sleaford and North Hykeham. I do not envisage that it will unduly delay the passage of the Bill. We have always tried to proceed through consensus. Given the strong speeches made by the right hon. and learned Member and by the Liberal Democrats in favour of the amendment, and the encouragement of the Opposition spokesperson, the hon. Member for Beaconsfield, I feel that the right hon. and learned Gentleman might not wish to press the matter to a Division, and that he will agree that we should reflect on it and perhaps return to it on Report.

Douglas Hogg: I am grateful to the Solicitor-General. I realise that he is not giving an undertaking to come back with an amendment on Report that would encapsulate or wholly reflect my thoughts. However, I understood him to say that he would give serious consideration to the principle. He indicated that he might be willing to embark on negotiations and discussions with Front Benchers. I would be rather pleased to be associated with those discussions. That said, it would be churlish not to welcome what the Solicitor-General has said.
I have told you already, Mr. Bercow, that my knowledge of procedure is 20 years old. Do I need the leave of the Committee to withdraw my motion? If, by any chance, the Government do not introduce proposals of the kind that we have outlined, I am sure that the Committee will not be surprised if I seek to catch the Deputy Speaker’s eye and move something similar on Report. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 2

Safeguards
“(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) In subsection (3), after second ‘satisfied’, insert ‘, or otherwise believes that such an order would, if made, significantly disadvantage or otherwise prejudice a defendant, or any of the defendants in cases where there is more than one defendant,’.
(3) In subsection (7), at end add ‘, the defendant, or any of the defendants in cases where there is more than one defendant.’.”.—[Mr. Hogg.]

Brought up, and read the First time.

Douglas Hogg: I beg to move, That the clause be read a Second time.
The new clause is a safeguard provision. If one refers to section 43 of the 2003 Act, one will see that there are precious few safeguards for a defendant. The only criterion applicable to an order as to whether a judge-alone trial is made is that which is set out in section 43(5). There, the court is not directed in any strong way to consider the position or the arguments of the defendant, and in general terms of fairness and parity, that seems to be unfair. Let us remember that under the existing provisions, the Crown is the party who makes the application, and one must assume that the Crown—the prosecution—is under the belief that it is in the Crown’s interests to make it. However, the Crown is not obliged to consider the welfare and interests of the defendant, nor is the court so directed in any direct manner. Consequently, the interests of the defendant do not seem to be properly protected under the existing legislation.
The Government from time to time talk about rebalancing the criminal system. I am deeply suspicious whenever I hear that, because I subscribe to the old-fashioned view, which I believe none the less to be right, whereby it is better by far that the occasional guilty person escapes justice than that innocent people are convicted. Incidentally, that view is regularly reinforced by Lord Bingham, the former Lord Chief Justice, who has committed himself to it in several recent judgments. I entirely agree with him. I have seen miscarriages of justice, and I have been associated with them in the criminal courts. I have seen people convicted of serious offences when in my judgment they should not have been. It is unpleasant and upsetting, and it should not happen in a mature judicial system. I want, therefore, proper safeguards.
One must ask, “In what circumstances would a defendant assert that a judge-alone trial might be unfair?” We must leave aside the fact that many judges become prosecution-minded. It is important to keep that fact in mind, but it would be difficult to articulate to the trial judge. I have practised at the Bar off and on since 1968-69, sometimes more off than on, because I was a Minister for 13 years, but it does not alter the fact that I am pretty familiar with judges, and many become prosecution-minded. I agree that that argument would not be easy to advance to a trial judge in favour of a jury or of denying a judge-alone trial, but it is a fact.
There are other curious circumstances in which that argument may arise, most notably the perverse verdict. Oddly enough, despite the name, “perverse verdict”, it is one of the important safeguards that a citizen has against the state. A perverse verdict operates when the Crown can establish the evidential requirements needed to sustain a conviction, but, broadly speaking, one should not convict in that case. There are several examples of that; I shall come to the fraud example in a moment.
In general terms, there is the mercy killing type of case in which murder is made out in accordance with the ordinary test of the Homicide Act 1957, but it was done to spare a person a long and horrible death. The perverse verdict is where the jury says, “We will not convict in such a case albeit that the legal requirements have been established.” Although it concerns a different point, the Ponting case is an example of the jury deciding that although the evidential requirements have been made out, the Government have acted oppressively in bringing the prosecution at all.

Stephen Hesford: Our common-law jurisdiction has developed over hundreds of years and all that common law is judge-made. As time goes by, judges review previous judgments and depart from them or make different judgments. Does not the right hon. and learned Gentleman envisage that a judge might come up with a perverse judgment, to use his term, if he or she thought the prosecution oppressive?

Douglas Hogg: There is no chance of that at all. If the legal requirement were made, a judge would convict as a matter of fact, but a jury might not because juries bring a different set of considerations to a case. They bring the consideration of a citizen assessing the propriety, appropriateness and broad justice of the case. It is not open to a trial judge who is the judge of both law and fact to do that, but it is open to a jury. Perverse verdicts are so called because the jury should not reach that decision, in one sense, and that is why a judge will not do it. A jury, however, might, and the Ponting case is one such case.
Juries might reach similar decisions in fraud cases in which the Crown has behaved in a way that is oppressive but falls short of “abuse of process”—a technical term with which lawyers are familiar. For example, in a case in which there has been unauthorised eavesdropping, inducements to make witnesses say things or coercive conduct of a kind that does not quite so infringe the PACE regulations as to make the evidence inadmissible, the jury might well decide that they are damned if they will convict albeit that the legal requirements are met. The perverse verdict is therefore an important safeguard in protecting the individual as against the state, and I can well see why a defendant might say, “I want to have the benefit of a jury trial.”
There is another argument that flows from a point made by my hon. Friend the Member for Beaconsfield. He is entirely right to say that there is often a multi-handed defence in which one defendant is the minnow and the other defendants are the sharks. In such a case, the minnow might well want a jury trial. My new clause would enable the minnow to say, “Please let me have a jury trial.” That might have one of two beneficial consequences: the minnow might win; or the minnow’s application might be so likely to win that the Crown would make an application to sever so that the minnow’s case could be tried separately in a different pond. That is to safeguard the interests of a defendant.
There is nothing in section 43 that seriously protects a defendant but there should be. I am perfectly willing to accept that the language in my new clause might be a little off, but, incidentally, it is modelled on section 43(7) in which the phrase “significantly disadvantage the prosecution” is used by the Government. They cannot, therefore, be heard to quarrel with the phrase “significantly disadvantage a defendant” because that is their language while the phrase
“or otherwise prejudice a defendant”
is a concept very well known to the criminal courts.
I hope that the Solicitor-General, in the surprising spirit of compromise that is developing in the Committee and which as a good-natured chap I encourage, comes forward to say, “Well, he has a point and I will take it away and give it serious consideration”. If he does that, on the same terms as I have withdrawn new clause 1, I will withdraw new clause 2.

Simon Hughes: I rise to support the new clause and will briefly say why. At the moment, when an application is made, the law as drafted requires the judge to consider a limited number of issues. The most important of which is whether a case is burdensometo the jury; that is the effect of section 43(5) of the2003 Act. There is a definition of what may make a case burdensome that we have partly touched on in earlier debates: complexity, length or both. The judge then has to assess whether complexity or length can be dealt with by procedural matters and if it should become a procedural question. There is only one other further prerequisite in the current legislation. That is that the judge is prohibited by law from coming to the conclusion that to dispense with the jury would be reasonable if it would severely and significantly disadvantage the prosecution.

Douglas Hogg: I think that subsection (7) applies when considering whether or not there can be changes made to the way the crown is handling or proposing to handle cases.

Simon Hughes: The right hon. and learned Gentleman is quite right; I was not sufficiently precise in my language.
The last part of the consideration is whether a trial would be able to continue by management and that is a matter when the interests of the prosecution are weighed in the balance.
There is no consideration requirement in the present Act for the defendant’s interests. The right hon. and learned Gentleman, in tabling the new clause, seeks to point out that both parties should be considered in this trial as well as the jury’s interests. The new clause has the merit of introducing a third and highly relevant player into the mind of the judge by law when going through the process. Let us look at the jury—is it in their interests? Let us look at the prosecution—would it be to their disadvantage if the processes were changed? If it is to their disadvantage, that road becomes a cul-de-sac. The right hon. and learned Gentleman asked about the defendant, but he went further than that and pointed out that what is in the interests of one defendant may not be in the interests of all defendants. That, as we all know, it always a material consideration.
The same reasoning determines whether people elect for a summary trial in a magistrates court for a lesser offence or go to a jury. Often one party, normally the less involved participant in the events that give rise to the charges, prefer a jury because it is perceived they would give consideration to the separate roles more carefully and give the benefit of the doubt. The judge, of course, follows the same rules in theory, but would not have the same confidence of a defendant as a jury. However, there would be the ability to distinguish those things. Presuming that this year the Lords will reject the proposal and next year the Government will bring it back and use the Parliament Act, if we are driven to have a new process that involves non-jury trial, it seems imperative that the interests of the defendant is in the mind of the judge when considering an application. That must mean the interests of each and every defendant and that is why the new clause has much to commend.

Dominic Grieve: I do not want to take up much more of the Committee’s time. It seems to me that in discussing new clause 1 we touched on the potential of opening up a new area. Although our principled opposition to this Bill remains total—I still believe that the Government will have to resort to the mechanism of the Parliament Act to get it through another place—if at some point in the future it is to go on the statute book, even if I dislike it in principle, I wish it to be as good as possible.
If we are to end up with a situation where both the prosecution and the defence can apply to the judge for trial without a jury this will have an impact on all the preconditions that have to be looked at in order to ensure that there are proper safeguard. It probably also applies to the new clause 4 conditions that we will come on to look at thereafter. As drafted at the moment, section 43 has the prosecutor’s view in mind and not that of the defendant.
If prosecution and defence representations are considered and there is an option for the defence to ask for trial without a jury in the very limited number of cases suggested by the Attorney-General and Solicitor-General, it will be very important that those measures should be so tailored first to emphasize the desirability of maintaining trial with a jury whenever possible, as long as it is not contrary to the interests of justice, and, second, to ensure that no party is placed at a significant disadvantage.
My right hon. and learned Friend the Member for Sleaford and North Hykeham has highlighted an important area in which I have always thought section 43 was deficient. It seems to look at mechanistic and procedural matters rather than at the issue of prejudice. I hope I am not opening too much of a can of worms because I can see that this is a debate which could continue well into Report if we were to carry out a major alteration to the Bill.
I would encourage my right hon. and learned Friend the Member for Sleaford and North Hykeham to withdraw the motion because, clearly, if we are moving towards the notion that a defendant also should be able to make an application, we would need to be looking at new clause 2 with that in mind. I would wish wherever possible to preserve jury trial even if one side or the other were asking for something different.
That concludes my remarks on the particular new clause, although I suspect that when we come to new clause 4, I am likely to repeat very much the same thing, which may shorten matters. One needs to look at the totality if we are to shift to a defendant being able to make the application as well.

Mike O'Brien: I listened with care to the arguments put forward in particular by the hon. Member for Beaconsfield about the interrelationship between this provision and the previous one. I accept that to some extent if we were to look at the previous issue then we might wish to consider some of these issues.
Having said that, let me take the new clause at face value. The effect of new clause 2 would be to allow the defendant in the course of the Bill to argue to the judge that his case would be heard by a jury because he would be significantly disadvantaged by a judge-alone trial. The Government, however, do not accept that a non-jury trial is capable of prejudicing a defendant or placing him at a disadvantage and therefore we would not accept the new clause.
The only example that the right hon. and learned Member for Sleaford and North Hykeham has provided of where the defendant might be disadvantaged seemed to be that he would be hoping for a perverse verdict. As the right hon. and learned Gentleman has said, the judge is less likely to come to a perverse decision on the evidence than is the jury. The judge is also unlikely to decide that he should not hear a case because of the improbability that he would be perverse.
In the circumstances, I am not sure that the argument that the right hon. and learned Gentleman has put forward can possibly stand, because we would be asking the judge to decide on something where he must conclude that it would be perverse of him to decide in the way that the right hon. and learned Gentleman suggests he might. The judge would be deciding that he might be perverse, and that is nonsense.
In the sorts of case to which the right hon. and learned Gentleman drew attention, for example, the Ponting case—I can think of others—we are unlikely to have a non-jury trial. The Bill deals with serious and complex fraud cases, and the Ponting case was an entirely different matter.
The right hon. and learned Gentleman argues that a perverse jury verdict is a safeguard in particular kinds of cases. That is an arguable point. The alternative argument is that the interests of justice are that there should be justice according to the law, and that it is for Parliament to look at that law and alter it as Parliament sees fit. I hear his point about perverse jury verdicts. In the past, they have been lauded as the democratic view of individuals, even though such a view may, on occasion, be contrary to the law. The complex and serious fraud cases that the Bill deals with are not the sorts of cases where that issue is likely to arise.
The latter part of the right hon. and learned Gentleman’s proposal—the change in proposed new subsection (3)—is different. In considering a section 43 application, the judge has to decide whether there are steps he could take that would reduce the length or complexity of that trial, since that might render a non-jury trial unnecessary. Section 43(7) requires the judge to disregard any step that would significantly disadvantage the prosecution. If there were steps that could reduce the length or complexity of the trial which might disadvantage the defendant, as opposed to the prosecution, we would agree that, rationally, they ought to be disregarded under subsection (7). We cannot think of any such steps in the Bill, and we are not persuaded that we can accept the new clause.
The right hon. and learned Gentleman raised an issue, as others have done, about the issue that I am going to consider in respect of the defendant waiver. I will examine the matter, although he has not persuaded me on it. I think that he had a stronger argument on the defendant waiver more generally. Again, I give him no undertaking and I say to him that I am unlikely to be with him on the point. I hope that he feels that he does not have to press this new clause to a Division. If he does not, I shall ask my hon. Friends to vote against it.

Douglas Hogg: Again, I am seeking compromise wherever I can get it. I note that the Solicitor-General has less enthusiasm for new clause 2 than he does for new clause 1. I draw the important conclusion that there might be considerable progress on new clause 1 and perhaps some progress on new clause 2. I welcome that, as far as it goes. On that basis, I am minded not to press new clause 2.
However, I say the following to the Solicitor-General and the Committee at large. First, do not overlook the importance of perverse verdicts. They are a safeguard that addresses the risk that the state might act in an oppressive way, as it sometimes does. It is good for a jury to be able to say, “Up with this we will not put.”
Secondly, if the Solicitor-General is right in saying that the circumstances in which a judge will be satisfied that the defendant’s interests will be prejudiced by a judge-alone trial cannot arise, in truth no harm would be done by including the new clause in the Bill, because it would not carry any weight. However, the defendant’s interests would be protected in his or her own eyes, and we are in the business of dealing with parity.
My last point, which I did not hear the Solicitor-General deal with, is that when there is more than one defendant, there is the minnow, who may well decide that there are advantages in seeking a jury trial. Their interests must not be ignored. If the Solicitor-General will forgive me, the minnow, in this case, escaped his net. On that basis, and subject to my remarks, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 3

Duty to hear oral representations
‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) After subsection (3) insert—
“(3A) In determining an application under subsection (2) the judge will grant—
(a) the prosecution,
(b) the defendant, or
(c) any of the defendants in cases where there is more than one defendant,
the opportunity to make oral representations, and will take such representations into account in deciding whether to make an order that the trial is to be conducted without a jury.”.
(3) In subsection (4), at end insert “and no approval may be given in circumstances where the defendant, or any of the defendants in cases where there is more than one defendant, have not been granted an opportunity to make oral representations under subsection (3A) and for those representations to have been taken into account.”.’.—[Mr. Hogg.]

Brought up, and read the First time.

Douglas Hogg: I beg to move, That the clause be read a Second time.
We are going with splendid speed, are we not Mr. Bercow? If we crack along, we might even finish tonight. That would be jolly nice, because I would not have to get here for 9 am on Thursday; that is an unconscionably early hour for me. However, that is beside the point.
New clause 3 is also designed to improve the safeguards for the defendant. It is odd, but if one looks at section 43 of the 2003 Act, one sees no requirement on the trial judge to whom the application is being made by the prosecution to hear oral representations. Perhaps the Solicitor-General will say that practice directions will be issued.

Mike O'Brien: If the right hon. and learned Gentleman looks at section 45 of the Criminal Justice Act 2003, he will find that subsection (2) provides that
“An application to which this section applies must be determined at a preparatory hearing”—
therefore an oral hearing—
“(within the meaning of the 1987 Act or Part 3 of the 1996 Act).”
Subsection (3) states:
“The parties to a preparatory hearing at which an application to which this section applies is to be determined must be given an opportunity to make representations with respect to the application.”
I hope that that deals with the right hon. and learned Gentleman’s points, and that he will be able to withdraw the motion.

Douglas Hogg: It deals only with the first part of my point, which I accept has been covered. It does not deal with the second part, about subsection (3), which deals with the Lord Chief Justice or the nominated judge. As I understand the procedure under the Bill, the concept is that the Lord Chief Justice should be a help and that the judge-alone trial order should be made only with the concurrence of the Lord Chief Justice or a judge nominated by him.
As far as I am aware, nothing in the 2003 Act or the Bill requires the Lord Chief Justice to listen to oral representations. In other words, it is a paper-only exercise. I certainly accept that many decisions are paper-only exercises—for example, a decision by the single judge about whether to grant leave to appeal against conviction or sentence is a paper exercise only, albeit subject to the proviso that the prospective appellant can apply to the full court.
I agree that there are situations when courts determine matters as a paper-only exercise, but with a matter of this import, I suggest that it is a good thing for the defendant who does not want to be made the subject of an order to have the opportunity to make oral representations to the Lord Chief Justice. That is the burden of new clause 3(3), and I hope that it finds favour with the Committee.

David Heath: The Solicitor-General’s intervention was extremely helpful in shortening our proceedings. It is clear to me that section 45 of the original Act deals with the opportunity for parties to make oral representations to the judge, but only in the first instance, and that the provisions of section 43 are dependant on section 45, so a judge could not come to a view on the basis of an application under section 43 without taking account of section 45. Therefore, I think the point raised by the right hon. and learned Gentleman is entirely covered by existing legislation.
There remains the right hon. and learned Gentleman’s view that it should be possible to make oral representation to the Lord Chief Justice in the certification of the decision on the application. I am not entirely convinced that that is a satisfactory procedure in this instance. There may be exceptional circumstances when the Lord Chief Justice might be prepared to entertain direct applications—perhaps if a judge has misdirected himself or herself on the basis of the application—but in general, I would expect that to be dealt with by written evidence before the Lord Chief Justice.
The right hon. and learned Gentleman has raised an interesting point, but I am not sure whether I could support him if he proceeded to a Division on the motion. I should be grateful to the Solicitor-General if he gave his view on whether I have accurately described the situation.

Dominic Grieve: I, too, am grateful to the Solicitor-General. I certainly understood—my memory is engraved with all the sections, even from 2003—that oral representations could be made. However, I perhaps differ from the hon. Member for Somerton and Frome: I certainly think that the possibility should be preserved for oral representations to be made to the Lord Chief Justice at the end of a certificating process.
I do not want to labour the point and I do not want too convoluted a system, but I have said in the past that I want jury trial to be preserved in so far as possible. To achieve that, at every stage when a prosecutor is making his application—if we were to move to a situation where a defendant could do it as well, I would wish it also to be preserved at every stage—the line of reasoning should be, wherever possible, that a jury trial should happen. For that reason, I had always understood that the Lord Chief Justice’s role was an important safeguard, and although I would normally agree that it would be appropriate for that to be done by written submission if necessary, the possibility of it being done by oral submission is important, and I should like that option to remain.
The Solicitor-General may say that the option exists without further amendment, in which case I shall be reassured, but it is an issue of some importance and we must face up to two facts. First, in the Government’s view, the number of cases in which such things will happen in any year is likely to be pretty minimal. Therefore, I do not think that the burden that we will place on the judiciary in the process of deciding whether it should happen will be too great. Secondly, the decisions, when taken, will be of some public interest. For that reason, it is important that there should be a full understanding by the public of what has happened, and oral hearings often provide an opportunity for that to happen.

David Heath: I am studying again the words of the new clause. I do not see that it provides for any further opportunity to make oral representations to the Lord Chief Justice; it simply requires the Lord Chief Justice not to give approval in circumstances in which any party has not had the opportunity to make oral representations before the judge under subsection (3A). Therefore, the matter remains entirely permissive on the part of the Lord Chief Justice, rather than by prescription of the new clause.

Dominic Grieve: That it is a matter of drafting. Those of us who draft for Committees are always happy to be told that we are wrong. It was the intention of subsection (3) to do precisely that. If it has not achieved it, that is another matter. I wait to hear from the Solicitor-General whether the new clause has not achieved its purpose. In any event, the intention is that there should be an option for oral representations to be made to the Lord Chief Justice. I leave it at that.

Mike O'Brien: It is not intended that the Bill should oblige the Lord Chief Justice—or the president of the Queen’s bench division who, in practice, might consider these matters in person—to hear oral representations. It is, however, the view of the president of the Queen’s bench division that the manner in which he—it is likely that he, rather than the Lord Chief Justice, will deal with such applications—hears the applications should be a matter of judicial discretion. If appropriate, provision for representations to be made in writing or orally could be set out in criminal practice rules or other guidance. Therefore, I suggest that we leave the matter to judicial discretion.
The arguments might well be able to be put by the various lawyers in a case—both for the prosecution and for the defence—before the judge who initially hears the application. He will be able to make a note of the arguments, and if they are straightforward, the president of the Queen’s bench division or the Lord Chief Justice might well take the view that those representations are adequate. The president might, however, take the view that he wants to hear oral representations. The request is that that be left as a matter of judicial discretion. That might not be appropriate in all cases; I do not say that it would be inappropriate in any case.
I hope that the right hon. and learned Member for Sleaford and North Hykeham will be able to accept my position in dealing with the substance of the argument that he puts forward. I think that I have dealt with the first part of the new clause, and I am grateful to him for having accepted that. So far as the last part goes, I think that he will agree that it does not achieve what he intends it to achieve.

Douglas Hogg: I take responsibility for the new clause, because it is in my name. However, a small error has been made during the reduction into the blue paper of my original drafting. It was my intention, as formulated in my draft, that the Lord Chief Justice should give an opportunity for oral representations before he gave his approval. I certainly accept that, in the form to which it has been reduced on the amendment paper, it refers to an application to a trial judge. I take responsibility for that, because anything that appears under one’s name is one’s responsibility.

Mike O'Brien: I am grateful to the right hon. and learned Gentleman. I cannot accept the new clause, but I hope that he accepts that I have sought to deal with the substance of his arguments. I hope that he will withdraw the motion.

Douglas Hogg: I accept that the new clause is imperfect, and I apologise to the hon. Member for Somerton and Frome, who was right. I was looking at my original draft of the new clause and had not spotted that the final version does not faithfully reflect what I had in mind, but the fault is mine. It is important for the Lord Chief Justice, or the judge nominated by him, to have judicial discretion to entertain oral representations if he thinks it appropriate. I believe that the Solicitor-General has said that that will be the case. I should be happier if the Bill contained something to that effect. That would concentrate the minds of the judiciary when they came to issue their practice direction. Although I welcome what the Solicitor-General has said, I ask him to reflect before Report on whether the language could be modified to make it plain that the Lord Chief Justice will have discretion to hear oral representations.

David Heath: Having been slightly critical of the drafting of the new clause, perhaps I am necessarily critical of the intention behind it. However, I agree entirely with the point that the right hon. and learned Gentleman has just made. Considering that the Solicitor-General clearly intends such discretion to exist, it would be helpful if that were stated in the Bill. I hope that he will introduce that on Report.

Douglas Hogg: I can only echo what the hon. Gentleman says, and I hope that the Solicitor-General will reflect carefully on the desirability of reaching a compromise without the need for unnecessary votes on Report. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 4

Conditions to be satisfied
‘In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—
“(5) The condition is that by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict, the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”.’.—[Mr. Hogg.]

Brought up, and read the First time.

Douglas Hogg: I beg to move, That the clause be read a Second time.
The new clause is an important safeguard. I concede at once that its purpose is to redraw the test set out in section 43(5) of the 2003 Act. The hon. Member for North Southwark and Bermondsey mentioned that test. I wish to discuss the criteria on the basis of which a judge-alone trial is to be ordered. As the Bill stands, a judge-alone trial will be ordered when, by reason of complexity or length, a trial is likely to be
“so burdensome upon the jury that the interests of justice require”
and so on.
The attention of judges is therefore drawn to the burden on the jury caused by either complexity or length. On Second Reading and in the debate on the 2003 Act, Ministers said time and again that, for the most part, they were not seeking to assert that such cases are so difficult that a jury cannot comprehend what is going on. They are concentrating on the burdensome nature of such trials, which is not peculiar to fraud cases. Many classes of case could be said to be burdensome by reason of complexity or length. Terrorism trials are cases in point—there have recently been very long trials—as are conspiracies to import drugs. Trials can be very lengthy and complicated. The same is true of multi-handed affrays, for which trials can be very long and could therefore be said to be burdensome.
Once the concept of burdensomeness as a result of complexity and/or length has been introduced, that asserts a principle that drives a coach and horses through our commitment to jury trials. Once that precedent is established, it will be difficult to say that there is no argument for doing away with jury trials in terrorism, affray, conspiracy and other cases. I strongly object to a test based on the burdensome nature of trials, because it establishes an unfortunate precedent.
I have therefore tried to apply a different criterion. Generally, I do not think that a jury would find it too complicated to determine a trial, but I am prepared to acknowledge the possibility. If a case arises whose complexity and length impugns the safety of the verdict, that seems a situation where the Committee might look favourably on a judge-alone trial. I have already given examples of how that situation might work in a defendant’s favour, as did the hon. Member for Somerton and Frome. I strongly resist the proposition that we should rely on the burden placed on the jury. However, in a small number of cases, because of complexity or length, it might be proper to consider whether or not a verdict is safe. That is a different approach, and I commend it to the Committee.
It is unlikely that there will be many such cases, but I do not exclude the possibility that there will be one or two every so often. Therefore, I hope that the Committee will give favourable consideration to what I admit is a redraft of the criteria set out in section 43(5) of the 2003 Act.

Simon Hughes: I am sympathetic to the right hon. and learned Gentleman’s argument, and he has given reasons for it. The most important issue for us to face could have been the burdensome consequences of trials for juries. The Liberal Democrats think either that that is not the case, that the burden on juries is not unique to fraud trials or, if it is, that it has been partly dealt with so that such trials will be less burdensome. For one, another or all of those reasons, we do not think that there is a reason for moving to a different sort of trial.
This is a more substantive and well rounded point. An experienced judge would be well able to consider it. Bluntly, it is on a different level from the pragmatic, functional matter of length of trial, documentation and number of witnesses. It relates to what we in this country train and employ judges to do—they are all trained now, and well trained—which is to conduct a trial that, in the end, proceeds fairly.
There is a danger with complex trials. They could be complex trials for offences of affray, which is halfway down the league table of seriousness, or for terrorist offences; they could be complex trials involving detailed forensic evidence for offences of serious assault, homicide and so on, which can be burdensome because of the trauma to the jury and witnesses. The danger is that, for all sorts of reasons, the verdict might not be safe.
Juries are confronted with the issue of how to ensure that they bring in a safe verdict. Juries are told over and again by the judge in summing up that they have to be satisfied that they are sure beyond a reasonable doubt. The right hon. and learned Gentleman made the point that such a verdict may err on the side of acquittal rather than give a verdict that was, as it were, just over the line of being persuaded. The test is much higher. The bar is much higher because we do not want thisto be a country in which convictions are thought tobe dubious, questionable, marginal or any other appropriate adjective. We have unanimous verdicts, but in exceptional cases, verdicts of 11 to one or 10 to two. 
New clause 4 is a serious and more rounded proposition, and is worth considering. To be fair to the Solicitor-General, it deals with an issue that has been reasonably addressed, whereas the issue of burdensome consequences has not been, for reasons that we have talked about—not least the procedural changes. I would be interested to hear his comments. My hon. Friend the Member for Somerton and Frome and I do not have a definite view, but if we must have a test for a trial to be conducted without a jury, we are sympathetic to the one in new clause 4. It may be a better, safer and more rounded test than the one in the current legislation.

Dominic Grieve: I welcome this opportunity to look at new clause 4. It is a probing new clause to tease out the reasons why the Government think that jury trials might not be satisfactory in very long cases. There is a slight sense that we sometimes avoid the nub of the matter. The Government argued that very longtrials are burdensome on juries, but, of course, some very long, non-fraud trials will continue to be burdensome.
At the same time, although we have always accepted that trials are burdensome, evidence, such as that from the report into the Jubilee line case, does not support the view that juries cannot hear such cases, although, admittedly, our pool of information is limited because of the difficulty in interviewing juries. Personally, in my experience of fraud trials, or, indeed, trials in general, verdicts have never been inexplicable or appeared perverse. It is true that, on occasions, I have seen people acquitted when I might have taken a different view—that tends to happen when one is prosecuting—but I have never felt that the jury had done something plainly wrong or that there was no material on which it reached its decision. That is one of the reasons why I have so much faith in jury trials.
When applying my own experience, however, perhaps I should be more concerned about whether I have ever had a case in which a guilty verdict was returned and I was worried because I thought that the defendant ought to have been acquitted. We know that such cases happen and, of course, those are the ones that get overturned in the Court of Appeal with the wonderful words of the appeal judge: “We feel that there is a lingering doubt”. However, statistically, such cases are few and far between and in my professional experience I hardly ever encountered them.
When we ask why we should get rid of juries in long fraud trials, we come to some difficult issues, on which my right hon. and learned Friend the Member for Sleaford and North Hykeham touched. He raised the question of whether the truth was not simply that the Government want to get rid of juries in long fraud trials because they believe that they will secure a higher rate of conviction. They are wrong. I do not believe that that is likely to happen.
There is a final possibility. If jurors are forced to remain in court for a very long time listening to a fraud trial, might that make them prejudiced against the defendant to such an extent that they would, at that stage, lose sight of their duty, so that the safety of the verdict could be impugned?
These are quite difficult areas. I see this as a probing new clause designed to tease out what the Government really think. If they have faith in the jury trial system—they are always repeating that they do—they have no reason to feel that jury verdicts are less safe than any others, and I think that that is their stated position. Do they feel, however, that in long trials the safety of the verdict can be called into question? If so, would the Solicitor-General like to tell us why?
I personally take the view—I can only repeat it—that on the whole jury trial delivers a very high quality of justice and does so in a way that is transparent, that the public have come to accept and that, for the reasons given by my right hon. and learned Friend the Member for Sleaford and North Hykeham, is seen to be fair and to provide a safeguard against state oppression—a safeguard that is so important.
If the Solicitor-General has other views, this is our opportunity in Committee to understand what exactly is troubling the Government about long trials. Is the issue anything other than just the burdensomeness to jurors of having to attend court for a long period?

Mike O'Brien: I fear that if the new clause is pressed, we will end up voting on it, because it would alter the criterion for determining an application under section 43. The question would no longer be how the length and complexity of the trial would affect the burden imposed on the jury, but how those factors would affect the safety of the verdict. That would be a significant change, because it has never been the Government’s position that there are doubts aboutthe verdicts returned by juries in serious fraud cases or that trial without a jury is necessary to resolvethem. Rather, our position throughout has been that section 43 is needed for the twin purposes of limiting the burden on the jury in such cases and of enabling justice to be done by exposing in court more fully the alleged criminality. The condition set out in the new clause would render section 43 ineffective.
I have heard arguments advanced that other types of trial can last a very long time, and of course they can. However, there is a particular history in relation to serious and complex fraud cases that does not exist in relation to those other types of case. It is not only that eminent reports such as the Roskill report and the Auld report support our view or that various representations have been made to Governments over time; it is that there has been a series of cases. Reference was made to some of the cases on which we rely. I shall talk about some of them—there are others—in which problems arose, in which there were burdens on juries or in which the full criminality of the case was not able to be exposed. Some of the cases are older; some are more recent.
The first case is R v. Cohen and others—the Blue Arrow case—which was completed back in 1992. The allegation was that, in effect, there was an agreement to rig the market. The case involved complex evidenceon rights issues and the basis on which a takeover by Blue Arrow of another company was structured. Defendants were convicted of conspiracy to defraud and given suspended sentences after a trial that lasted a year. The convictions were subsequently overturned on appeal.
The prosecution had significantly reduced the prosecution case before it came to court; that had already happened in order to get the case before a jury. Even so, the trial judge pruned the case further during the trial, greatly reducing both the scope of the indictment and the complexity of the counts. The trial judge ordered further deletions from the indictment between counsels’ final speeches and the jury’s deliberations, directing the jury not to consider the admissible evidence relating to the deleted particulars. That was held to be a material irregularity by theCourt of Appeal when it subsequently considered the matter.
Additionally, the trial judge severed the case into two trials to make it “manageable” for the jury. That still meant 10 defendants facing trial together. On the burden experienced by the jury, the trial judge, Mr. Justice McKinnon, said that no jury should be asked to cope with what that jury had to endure. Following the appeal, the Court of Appeal said that there was
“a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence.”
It noted that the jury retired with 956 pages of exhibits and such recollections that they might have had of94 prosecution witnesses giving evidence between seven and 11 months earlier and of counsels’ final speeches having been delivered between 59 and 65 days earlier.
The Serious Fraud Office’s view is that the pruning of the case and the trial severance undermined the prosecution’s ability to present a cohesive or coherent case. Measures designed to improve conditions for the jury, such as two periods of extended leave over Christmas and the summer, were said to have helped destroy the basic assumption that a jury determines guilt or innocence on evidence that it is able to comprehend and remember. It is not so much the jury’s comprehension that was in question, but the sheer volume of the evidence.

Dominic Grieve: I appreciate the Solicitor-General’s concentrating on complexity and length rather than the new clause, which is about the impact on safety. The Jubilee line case suffered massive interruptions. Notwithstanding that, the evidence was that when the jurors were brought together in one room some time afterwards and asked to recollect the case and the key issues, they were able to do so with little difficulty. I suggest that what the Solicitor-General says is mere hypothesis. The only evidence we have, limited as it is, tends the other way.

Mike O'Brien: The hon. Gentleman asked me to set out the arguments about the burden on juries. That is why I am taking so much time. Members of the Committee will have to bear with me, because it is worth the Government setting out some of their concerns about that burden. We have never said that juries are unable to understand such cases—what the hon. and learned Member for Harborough (Mr. Garnier) called the stupid jury argument. That is not the Government’s view, but we do think that the burden on the juror and on juries is unacceptable in certain cases and that, in those circumstances, we should be able to have a non-jury trial.
The hon. Member for Beaconsfield mentioned the Jubilee line case. In his report, Her Majesty’s inspector of the Crown Prosecution Service questioned whether it would have been suitable for treatment under section 43. In a sense, the question of whether the case would ever have been dealt with in a non-jury trial is moot. Of course, problems arose in the management of that case and in the handling of the charges of conspiracy to defraud. There were issues in relation to the illness of a defendant, and some on the disjointed handling of evidence. More particularly, the problems that arose in relation to the Jubilee line case that were exposed in the inspector’s report related to the impact of the long trial on the lives of a number of the jurors. The jurors found that when they returned to work their promotion had been affected, their relationship with their employer has been affected, or the way in which they were able to deal with business had been affected, and the burden on them was significant. I am not sure that the Jubilee line case entirely proves either of our points, although it does give some evidence on both sides of the argument. Yes, the jury in the Jubilee line case gave clear evidence that it understood the case, which was very complex, but it also said that there was a burden on individuals.

Simon Hughes: That point I have accepted, and it is agreed throughout the Committee and the House. Will the Solicitor-General either tell us now, so that it is on the record, or check later, first, whether he has figures that show, for the period before and after the Jubilee line case, which was the one that gave rise to all sorts of reports, how many cases dealing with fraud have taken more than three months, six months or—I am trying to ask the question that allows the easiest answer, if the information exists—a similar period, and, secondly, whether the same figures exist for that period across the criminal courts generally? Obviously the burdensome point will apply in those cases too, because of the length of time away from normal life. It would be helpful for the debate, as much now as on Report, if there were figures that showed how many criminal trials in 21st century Britain—or at least England and Wales—currently exceed the three, six and nine-month hurdles.

Mike O'Brien: It might be useful to refer to the Serious Fraud Office’s annual report for 2005-06, which says:
“In this year ten trials were completed including23 defendants, among whom 13 were convicted and ten acquitted”.
I shall have to come back to the hon. Gentleman on the number of trials that lasted longer than six months. I have the figures, but it will take me a moment or two to look them up, although I hope to come up with them shortly, as I quoted them in the debate that we had in the Chamber and they are in the transcript.
I want to take some time to consider those cases in which there was a burden on juries, because it is important to set out the Government’s views in relation to them. Another case that comes to mind is the Maxwell case, which is I am sure is known to all right hon. and hon. Members. The indictment alleged eight separate conspiracies to defraud involving combinations of six defendants, plus two substantive counts of related false accounting. The Maxwell brothers were acquitted in 1996, after the first trial lasting seven months. The second trial was stayed as an abuse of process. The prosecution had significantly reduced the prosecution case before it came before the court. Even so, the trial judge severed the case for trial management purposes and further reduced the number of counts put forward by the prosecution. The trial judge remarked that
“the prosecution and most of the defendants are agreed that, were it practicable, all the counts should be the subject matter of a single trial ... all are agreed that the length and complexity of such a trial would far outstrip the capacity of any jury”.
Following acquittals in the first trial, the judge due to hear the second trial, Mr. Justice Buckley, stayed the proceedings on grounds of abuse. He noted:
“When using his powers of severance the trial judge recognised that it would prevent the prosecution from putting before the jury the full weight of the case”.
He added that to accept the submission that the second trial should not take place would be
“to accept that in a serious and complex fraud, the limitations of jury trial prevent the prosecution from presenting a case which fairly and adequately represents the fraud alleged. If that is so, then jury trial is unfair and inappropriate.”
In the Da Costa case of 2004, a more recent case, the SFO decided to offer no evidence on a conspiracy to defraud. The allegation was that the suspects had been underwriting marine and other insurance on behalf of an Italian company when they were not authorised to do so. I approach the case with care, because I make no allegation in relation to those individuals. The Crown offered no evidence in relation to it, and it became clear that trying to present the complexity of the case would be burdensome and difficult. The legal arguments and the trial judge’s ruling, which suggested that the insurance contracts would have to be proved separately and could not be relied on to prove the illegality of the scheme as a whole, meant that the jury would be required to grapple with the common law doctrine of ostensible authority against a complex, highly detailed factual background involving thousands of marine insurance policies. In other words, the SFO decided not to proceed because the approach that was insisted on was so complex and unmanageable for a jury. I repeat that I make no allegation in relation to any of the defendants in that case, for reasons that hon. Members will understand.
I have previously referred to the Talbot Village Trust case. The trust was a charity. It employed professionals who, between 1985 and 1995, fraudulently overcharged for professional services related to construction works on major projects. Three of the five defendants were convicted by a jury. On 26 March 2004, one three-year custodial sentence was handed down, which was increased to six years on appeal because of its undue leniency. There were two suspended sentences. The trial judge ordered that the scope of the prosecutions be reduced for trial management reasons. That included evidence that for contracts of the construction company that was run by the acquitted defendants, profit margins were substantially larger than would be expected of such contracts. Even so, the trial lasted for 13 months. In many ways, that is a typical example of a Serious Fraud Office case, in which numerous individual transactions have to be proved to establish dishonesty. The reduction in the scope of the prosecution case made it appear disjointed in the view of the SFO and undermined it in key areas, such as the establishment of dishonesty. That is why I refer to that case.

Simon Hughes: I am following carefully what the Solicitor-General says and I understand the argument. What he has not said is that there are cases with which prosecutors decide not to proceed because they would fail the test of being convincing in front of any tribunal. They would not be able to accumulate the evidence in a way that a single judge, three judges, a jury or other people would necessarily find convincing. That applies to all considerations of CPS or SFO cases. Although the Solicitor-General makes a good point, it is not persuasive that jury trial must give way so that those cases would work in front of a single judge and be successful, where others would fail and result in acquittal.

Mike O'Brien: I hear what the hon. Gentleman says. He asked me earlier about some cases; I shall give him the answer that I did not have to hand then, before I deal with the substantive point. Between 2002 and 2005, 26 trials lasted more than six months, of which six lasted more than a year.
On the hon. Gentleman’s point, the nature of jury trial requires the presentation of oral evidence. By agreement with both parties, a judge may be able view some written evidence in documentation, either before or during the proceedings. He may be able to manage that documentation in a way that does not require the substantial oral presentation that might be necessary before a jury. Furthermore, defence or prosecution lawyers may feel that they have to explain things fully to a jury and so explain them at some length and in substantial detail. The judge, however, may be able to say to the lawyer who is making his presentation, “You have gone on too long. I understand your point. Move on to the next one.” Some hon. Members on the Government Benches may well feel that I am in that position now. That is the how a judge can deal with such a situation.

Dominic Grieve: In my experience, it is always a dangerous moment when the judge in a civil case says, “I understand that point; move on.” One discovers subsequently that he does not understand it at all and is saddled with a difficulty.
I will touch on an important point that I mentioned on Second Reading, although I did not get an answer. I can see that if the prosecution and the defence agree to the acceptance of certain facts or material, the judge might have an opportunity to consider them and so short-circuit some of the oral evidence, but it must be clear that if the parties do not agree, whether the trial takes place before a jury or a judge alone, all the evidence must be laid in the usual way and read out if necessary. Without that, it should not be on the record. Even if they are agreed, it should still be on the record. 
I am troubled by what the Solicitor-General said, because I do not see where the short cut lies. The logic of what he said is that some evidence not laid in court could still be considered by the judge on his own. In my view, that makes a fair trial impossible.

Mike O'Brien: It is the case not only under Diplock court rules but in civil cases that judges may consider documentation. That is not secret; the documentation it is part of the pleadings, documents and evidence in the case. However, in jury trials, the documents will no doubt have to be explained at substantial length so that juries are fully cognizant of the surrounding circumstances. If a judge is known to be aware of those circumstances, a lot of that can be short-circuited.

Dominic Grieve: Will the Solicitor-General give way?

Mike O'Brien: Let me make this point. The hon. Gentleman says that it might not reduce the length of some trials. I accept that. On Second Reading, I accepted that because some trials might not be severed—all the counts might be included rather than being cut short and defendants might not be dropped off the end so as not to make things too complicated for the jury—some cases might well last longer than an individual severed case. However, the judge would be able to manage much more effectively the volume of material and breadth of the case and to deliver a fair verdict that deals with the defendant’s full culpability without placing an undue burden on 12 jury members.

Dominic Grieve: To pick up on the first point about documents, in the jury trials with which I have been involved, voluminous documents were placed before the jury. Not all the documentation is explained in the course of the trial, but the documentation on which the parties rely must be explained and considered and individual paragraphs identified as key in documentary evidence so that the jurors can highlight it to consider later.
I do not really see that the procedure will be any different with a jury than with a judge, except that in terms of opening speeches, it might be possible, as has been said, for the judge to say, “I understand that point,” whereas prosecutors tend to go over ground carefully if they think that they are touching on areas of complexity. It worries me that the very long cases that I envisage will come out of the legislation might be burdensome to judges and lead to difficulties with verdicts and a lack of clarity.

Mike O'Brien: Judges do a very good job for us and are very well paid for it. If they must take something of a burden in handling complex and serious frauds, that will perhaps be an instance in which they earn their salary. I shall not worry too much about that. It is incumbent on Members, however, to consider members of the public whose lives may well be significantly affected by the burden of having to sit ina serious and complex fraud case for a period of a year or more. We know from the Jubilee line case thatthat can affect their employment status and their circumstances, and we should not ignore that burden.
I was going to elaborate further on the Versailles case, the Global Wildlife Trust case and the PA spiral case, but in view of the time and the length of my submissions I shall spare the Committee that. Nevertheless, the burden on juries can be serious, and we must ensure that it is recognised. The new clause proposed by the right hon. and learned Gentleman would change the terms of the judge’s decision, and would do so in a way that the Government do not find acceptable. It is axiomatic that no judge will make a decision that he believes to be manifestly unsafe to the delivery of justice—that is a broader consideration that judges will always have.
It is important to set out in statute the reason for the Government’s view that change must be made. The reason is clear: change is necessary because we need to ensure both that the burden on the jury is not disproportionate and that justice is properly done through exposure of defendants’ full culpability in complex and serious fraud cases. I hope that my references to older cases, despite being truncated, have demonstrated that judges who have to deal with such circumstances are very concerned about that burden and about the effect it has on presenting, handling and managing the case. The SFO, which has to prosecute the cases, is very concerned that the requirement to present complex and detailed evidence orally to the jury makes it difficult properly to set out a case to that jury. That has resulted in severing of cases, reducing of counts, and knocking off of some defendants from the end of charge sheets, none of which delivers justice effectively.
I accept that there are similar problems in some other types of case. However, complex and serious fraud cases have a long history of recommendation after recommendation, of judges calling attention to matters, and of Governments not—until 2003—doing enough about the problem. We are now intent on doing something about it. Justice needs to be delivered.

Douglas Hogg: The hour is getting late, and I should not be surprised if, at the conclusion of the debate on the new clause, you might feel it appropriate to adjourn, Mr. Bercow. It is a matter entirely for the Committee, so I shall lighten the grief.
Let us keep in mind what we are about. We are trying to define the criteria that would justify a judge-alone trial. The Solicitor-General has advanced at some length the arguments in favour of the existing provisions in the Bill—which may be described as the “burdensome” provisions. I am bound to say that I do not agree with him, which is very largely because an unfortunate precedent would be set that would apply to other types of trial. I am realist, however, and I know full well that the Government have the majority on the Floor of the House and that they are clearly determined to push the idea forward. I think it is a bad idea, but so be it—that is the nature of parliamentary life.
We are also, however, in the business of improving legislation, and when the Solicitor-General was talking a thought occurred to me that I need to share with the Committee. If I may catch the Solicitor-General’s attention, I hope that he will reflect on it. We have accepted the possibility that the defendant will be entitled to apply for a judge-alone trial, and one has to define the criteria that will govern that application. The defendant might make an application on the grounds of burden, and of course subsection (5) of section 43 enables him to do so. But he might also make an application on the grounds that the length and complexity of the trial are likely to impact on the safety of the verdict.
The Committee was good enough to listen to two examples that I produced, one of which received support from the hon. Member for Somerton and Frome. In one example, the detail of the case was such that it might impact on the jury’s verdict; for example, so much interpretation or translation of documents was required that the jury might well become confused, and that would impact on the safety of the verdict. If the defendant is making an application for a judge-alone trial, he must be able to say why, but the reason might not be burdensomeness. It might be the one that I just advanced, at which point the impact on the quality of the verdict should be a criterion.
The example that the hon. Gentleman picked up on—perhaps I advanced it less clearly than he did—was when the concept of the defence is so difficult that it might itself impact on the safety of the verdict. He said, and I entirely agreed with him, that there will be cases where one is on the margin between what is illegal and what is questionable. At that point, a defendant may say to the judge, “This is such a complicated concept, and it involves so much history and so many details, proprieties, cross-national jurisdictions and this and that that a jury will not be able safely to come to a verdict.” The defendant might wish to use a concept of that kind to seek a judge-alone trial.
Therefore, on the basis of improving what I do not like, I am saying that if we must have the concept of burdensomeness, which I do not like, and given that the defendant might make an application, we should reflect on the need for criteria that go to the quality of the verdict on which the defendant can rely when making an application.

Stephen Hesford: Given the late hour, I would ask the right hon. and learned Gentleman to come clean with the Committee. The new clause is tendentious. He does not believe that the jury can be impugned in its deliberation in a case. Neither do the Government believe that, yet he wants a defendant to be able to make that argument in order to get a non-jury trial. In fact, the prosecution will never make such an application to a judge because the Government and the Crown do not believe that the deliberations of a jury can be impugned. This is a wrecking amendment.

Douglas Hogg: The hon. Gentleman is a confused and confusing Member. I do not like the Bill or the concept of burdensome—I do not make any bones about that. But we are where we are, and I am making some suggestions as to how the Bill might be improved. The Solicitor-General has been good enough to say that he will reflect on the desirability of the defendant’s being able to make an application for a judge-alone trial.
My point is that the defendant may do so on the basis that the trial is likely to be burdensome to the jury, but he may have other reasons which go to the safety of the verdict. Those other reasons are not reflected in the Bill or the Act as it is now. Once we accept that the defendant might be able to make an application for a judge-alone trial, we must ask what the criteria will be—and they are not confined to being burdensome. That was my only point, which I think that the Solicitor-General has understood even if the hon. Member for Wirral, West has not. I know that other members of the Committee, on the Opposition Benches, at least, have understood it.
Given that I am in favour of improving the Bill, I am perfectly prepared to accept that my new clause does not go as far as I now think that it should. Because there is merit in giving careful reflection to what I am saying, with the leave of the Committee I beg to ask leave to withdraw the new clause.

Motion and clause, by leave, withdrawn.

John Bercow: I should tell the Committee at this point, in response to the observation made by the right hon. and learned Member for Sleaford and North Hykeham a few moments ago—that I might at this point seek adjournment of the sitting—that I have no intention of doing so. We have only to deal with one further new clause and I should have thought that the Committee would therefore wish to persevere.

New Clause 5

Expert assessors
‘(1) The Lord Chief Justice shall appoint six assessors drawn from—
(a) the Royal Institute of Chartered Accountants,
(b) the Society of Actuaries, or
(c) other persons prescribed in regulations made by the Lord Chancellor
to determine, with the judge, the facts of fraud cases conducted without a jury under section 43 of the Criminal Justice Act 2003.’.—[Mr. Grieve.]

Brought up, and read the First time.

Dominic Grieve: I beg to move, that the clause be read a Second time.
I shall endeavour to be brief, seeing that this is the last new clause that we have to consider in Committee. 
I must first confess to the Committee that when I went to the office to present amendments to this Bill for consideration, it was my desire that the Committee might debate having trials by special juries. The Solicitor-General knows well that we on these Benches were always prepared to consider that one area of compromise to deal with the issue of burdensomeness. I believed that it would be possible to put together jury panels consisting of individuals who were well versed in financial matters, which would allow them to sit on such panels and consider the verdict—because I regard having an independent assessment, separate from the judge, as so important for preserving confidence in our criminal justice system. We should maintain the principle that it is not the state against an individual, with the judge reaching a decision, but independent members of the community who decide on guilt or innocence.
That would have been my preferred course. Yet although I sought as ingeniously as I could to suggest variously using the terminology “panel”, or “group of experts”, or any other device, I discovered that—despite all my creative ingenuity—those better versed in drafting would tell me firmly that it could not be done, as the principle at Second Reading was that we were getting rid of juries. Even a special jury was a jury: even a “special panel” was a jury by another name. So, I regret that I have not been as successful as I would have wished in providing an opportunity for the Committee to revisit that issue.
I must put on the record that I believe there was always the possibility of compromise on such a principle, including a potential departure from having 12 to have a smaller panel. I am convinced that if this is a real area of difficulty, that would be the wise way to proceed. There are plenty of people of the right age around, being semi-retired, who could make up such a panel and be only too happy to spend months poring over a case that was forensically interesting to them. They would also have the independence to deliver a verdict that would command public acceptance and confidence.
Seeing as I could not do that, the only thing to do was to put before the Committee the proposal that the judge should sit with assessors. That apparently is permissible, as they would be with—and retire with—the judge, and the judge would still have a role in the verdict. I must accept one point: if the motion were to proceed, it would need fleshing out. On the basis of what I have tabled, I accept that it is not clear whether there would be a majority verdict or a casting vote from the judge, and that other details would need further examination. The only merit of the proposal is that the final decision is not that of the judge on his own. If a judge were to sit with a panel of six assessors, there would have to be unanimity or a majority, or a straight majority with a casting vote from the judge if there were a three-three split on guilt or innocence at the end of a trial. The proposal has, however as I say, the merit that the judge’s role is diluted, and that the role of the independent assessors, suitably selected, is enhanced.
I should be grateful for the Government’s response—it is a probing motion—about why such a course of action does not commend itself. It would be useful for the Committee to know at what point the Government decide that the introduction of lay assessors becomes impossible. The Solicitor-General knows—I do not think that I am giving away any secrets—that on occasion, there have been hints from the Government that some form of lay assessor might be acceptable. Generally speaking, however, they have been talking about two lay assessors and a judge. That is an uncomfortable concept, because it does not have the necessary critical mass; I should prefer more assessors. Again, I hope that I can tease out of the Solicitor-General the Government’s views on the gist of the proposal, its principle and its detail.
I want to make it clear that in moving the new clause, it is in no sense a preferred option. It makes absolutely no difference to my hostility to the Bill, nor I suspect to the outright hostility that will occur in another place, too. There would be a way forward—a way forward that I rather sought to put before the Committee. Unfortunately, however, the Government’s implacable desire to get rid of trial by jury makes it impossible for us to consider it, which I regret. Even at the eleventh hour and fifty-ninth minute, if the Government were wise, they might reconsider that issue.

Douglas Hogg: On the question of lay assessors, I entirely agree with my hon. Friend about critical mass. Two or three lay assessors is not a critical mass. Again, in the spirit of trying to improve the imperfect, he will keep in mind the Crown court when it acts as a court of appeal from justices. There, one sometimes has a Crown court judge sitting with two justices, and that might be a model on which one could proceed if we have to go down this road at all.

Dominic Grieve: Yes. As I say, the Government have not come up with the proposal, although in the past they have floated it. In fairness to them, the proposal has on the whole received a frosty reception from the Opposition parties. However, before it was too late and we ended up with what I anticipate will be a great confrontation between the Lords and the Commons, I wanted to tease out how far the Government’s give might go on such an issue. If I may say to the hon. and learned Gentleman, the Solicitor-General, I do so in a conciliatory spirit and not to wrong-foot him.
I appreciate that the Solicitor-General may disagree with the principle of the proposal or with the number of lay assessors, and that he may come up with arguments, which I prefer to have on record, about why the course of action is considered impractical, unwise or unnecessary. However, I should not wish this Committee to be completed without our having an opportunity to consider the motion.
I shall now sit down. My one regret is that we have not had the opportunity of considering a proposal for special juries, which would commend itself to me so very much more.

Simon Hughes: We are in a different league of debate, and I welcome it. Like the hon. Member for Beaconsfield, my hon. Friend the Member for Somerton and Frome and I were aware, and it was clear from the drafting of the advice, that there was a line beyond which we could not go formally. The hon. Gentleman tried to get as near to that line as he could, and again, I want to respond.
I, my hon. Friend and our colleagues do not support the proposal, because we have always argued that there should be a clear division between the person who is in charge of judging the law and the people who arein charge of judging the fact. Thus, the principle that in serious cases facts and guilt are determined by lay people—representatives of the public, not professionals paid to be judges—is kept. That is Lord Devlin’s small Parliament, little democracy principle. It is about having a criminal justice system that, whether in a magistrates court with lay justices or in the higher courts with juries, ensures that decisions about guilt and innocence involve the public and are not handed over to professionals.
I want to make it clear that the new clause goes a step or two too far. It is, however, a welcome probing measure that opens up discussion as to where there might be common ground. In that context, let me outline some of the options that I explored in conversations with the Solicitor-General and the Attorney-General. It is in everybody’s interests that we should do that openly and straightforwardly.
The first option that we explored was to have smaller juries—juries of fewer than 12 people, possibly eight or even half a dozen. Why? Because if there were a burden it would be a burden on a smaller number of people. The second was to draw juries from a pool of people who would hold themselves available for trials such as those that we are discussing, because that would not be as burdensome for them as it is for others.
Certain categories of people would be willing totake up that offer. Perhaps they could answer a supplementary question about empanelling juries when they filled in their forms to register on the electoral roll; then enquiries could be made. We need to ensure that we do not end up with representatives of only one section of the community, but one can imagine that the offer might be taken up by people who are retired, those who are unable to do paid work for a significant period following injury and so on, and those who are willing to do it because they are self-employed and can manage their lives accordingly. I do not say that the principle is perfect, but it would be entirely possible to construct an alternative pool of people for whom it was not a burdensome task in the way that it might be for somebody who was taken off the street, brought to the court and, out of the blue, told that the case might last for nine months rather than the usual two weeks. Both of those options are possible.
The third option that we considered was one that used lay magistrates—not trained lawyers or judges—as jurors. There would be a professional judge, with the jurors separately as judges of fact. That is a difficult argument to sustain, but it is worth considering. It would, however, be a separation. Finally, we had conversations that crossed the line in the direction of this new clause. That involved having a judge plus other people sitting with the judge. There was a discussion—I do not want to betray any confidences—that involved including magistrates or assessors, that is to say experts or lay people, in combination, so that one or the other or both could sit with the judge. As the hon. Member for Beaconsfield indicated, they would retire with the judge. I think that that goes too far, as I have said. Therefore, my hon. Friend and I cannot support the new clause.
For us, it is not an absolute principle that there have to be 12 people for a jury, or that there has to be any particular number. The number has to have sufficient weight or centre of gravity to be a group; I think that the phrase is critical mass. It is also important that there should be a distinction, so that the public can see that the defendant can know that two functions are being addressed in the court: the assessment of the law and the judgment of the facts. That, for us, is the principle. Within those parameters, there is a conversation that we are still willing to have and, I am happy to say, my hon. Friend and I are willing to return to the matter.
If we went down that road, there might be progress. It would not be technically a “fraud (trials without a jury)” Act because there would be a jury. It would be a “fraud (less burdensome ways of trying these big cases)” Act and that is, according to the Government, one of the objectives. It would also achieve the second Government objective: there would not be the difficulty, if one accepts the Government’s case, about exposing the potential breadth of criminality. If one had selected, smaller numbers and more expert jurors, it would be possible to sustain an argument that they were able to look at anything that the prosecution was minded to give them.
We will not support the new clause. It is worth probing the matter, if only to encourage the Solicitor-General and the Attorney-General to think that there may even yet be some ground that we could find between us that might save quite a long process in this Session and another quite long process in the next Session. It may be better to get something done this year, rather than nothing being done this year and a great battle with an uncertain outcome next year.

Mike O'Brien: We have had substantial discussions on this matter both privately and publicly, and I do not think it is likely that we are going to get a compromise. I wish that I could be convinced that Opposition Front Benchers would be likely to agree to a compromise. The Government have made clear what our view is and Opposition Members have done likewise. I do not think that there is likely to be any room for the compromise that we have sought, which has not been forthcoming.
The hon. Member for Beaconsfield described, quite fairly, the new clause as a probing measure. It was not favoured by Roskill or Sir Robin Auld in the way he describes, but they both looked at it. Roskill recommended a judge sitting with two lay members drawn from a panel of persons with general expertise in business and experience of complex transactions. Auld came to a similar conclusion but only, as he put it, after considerable thought. As he acknowledged, the arrangement would not be without its difficulties. What would be the role of the expert members? Would there be a risk that members would contribute evidence that could not easily be challenged by the parties? How readily could suitable members be found? What would be the cost of remunerating them? For all those and other reasons, the Government have decided that, on balance, following the seminar and various representations made to us, the option of trial by judge alone was preferable.
Sir Robin Auld had this to say about special juries; it was referred to during the debate:
“The proposal would revive for a special category of criminal case an institution that was abolished in criminal and most civil cases in 1949 and had been little used in crime for several decades before that. If the institution were to be revived for fraud and possibly other complex cases the first question would be the nature of the qualifications required for selection as a potential special juror. Presumably in the context of fraud they would need to be those with wide experience of business and finance. But, as the Roskill committee pointed out in rejecting this option, it would be difficult to empanel a jury even from such a restricted category who would collegiately have the degree of specialist knowledge or expertise which by definition they would be required to have for the particular subject in each case. And even if suitably qualified jurors, maybe smaller than twelve, could be found, it would be unreasonable to expect them to serve the length of time that many such fraud trials now take.”
That deals with the points raised in relation to special juries. It is from Sir Robin Auld rather than me. In the Government’s view, it is a serious objection to a special jury that evidence would have to be presented to it orally without the interaction with counsel. It would not be possible, as it would be for a tribunal or for a judge, for the jury of the sort described to let the lawyers know that they had understood a point and that the lawyers should move on—in other words, to be able to manage the case themselves. The Opposition’s idea that the decider and the arbitrator of a case must be separated would make it far more difficult to manage. If a single judge were sitting, or a judge with perhaps two lay assessors, he would be able to manage the case much more effectively and its complexity could be properly evaluated. That would not be the position in the case of a special jury or in the system proposed in the new clause. I appreciate that it is a probing new clause, and I hope that I have given views on the points raised and that the motion will be withdrawn.

Dominic Grieve: I am grateful to the Solicitor-General for participating in the debate in the spirit in which the new clause was tabled and for dealing with the wider issues that I raised on special juries. I wish to pick up on two or three points, because there are matters on which I disagree with the Solicitor-General and with Sir Robin Auld and Lord Roskill.
It is suggested that one of the objections to specialist lay assessors is that the extent to which they would bring their own knowledge to bear on a case would be unclear. But that happens all the time with jurors, who are entitled to bring to the jury box their own knowledge and experience of the world. Some of them have specialist knowledge, and that is explicit in barristers now being allowed to serve on juries. If they get on to the jury, which sometimes does not happen because they know the judge, defendant or a counsel, they certainly have a knowledge of court procedure. That includes occasions when a jury has been sent out for some reason, so they have a pretty good idea of issues that require a jury’s non-attendance. That does not seem to trouble the Government, and it does not really trouble me much. I do not consider the fact that lay assessors might have background knowledge of the areas covered a viable objection.
On special juries, if the Solicitor-General would like to come my constituency, he will find a plethora of retired—

John Bercow: Order. I hope that the hon. Gentleman will be very brief and sparing in his remarks about special juries. I know that some comments on them have already been made, but, strictly speaking, if he were to dilate upon the point, he would be in danger of addressing a new clause that some might wish we had to consider but which we do not, rather than the one that we do have.

Dominic Grieve: I can promise you, Mr. Bercow, that I shall be very brief and only respond to the Solicitor-General’s helpful comments.
If the Solicitor-General comes to my constituency, he will find a plethora of retired chartered accountants and professionals, many of whom would be only too happy to give some of their time, particularly as many of them took early retirement when pensions policies were rather different. They would be happy to devote time to considering the matters in question, and would do so well. I simply do not accept that it would be impossible to find panels of individuals capable of doing the job.
I have said clearly that this is a probing new clause, and I am grateful to the Solicitor-General for responding in its spirit. There may well be no meeting of minds on the matter, for the reasons given by the hon. Member for North Southwark and Bermondsey. I agree with him—the approach in the Bill does not commend itself to me. I have said, out of conscience if nothing else, that if the Government’s anxiety is about the difficulty and burden on ordinary jurors, we can do something about that. I hope that the Government will continue to consider the issue. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Question proposed, That the Chairman do report the Bill to the House.

Mike O'Brien: On a point of order, Mr. Bercow, I extend the Committee’s thanks to you as Chairman. Due to the firmness of your chairmanship, not only was good order maintained but we were able to have a full debate and finish the Committee early. We are grateful to you for that.
I also extend my thanks to the Under-Secretary of State for the Home Department, my hon. Friend the Member for Enfield, North, for her efforts duringthe passage of the Bill. I also thank my hon. Friend the Member for Tynemouth, who is the Government Whip and other members of the Committee from all parties, especially my hon. Friend the Member for Coventry, South, my Parliamentary Private Secretary.
I also thank the police, the attendants and, most importantly, as they ensured that I was able to deal with the issues, those officials who were kind enough to give me such excellent briefing. I also extend my thanks for the very considered way in which the Opposition spokespersons, the hon. Members for Beaconsfield and for North Southwark and Bermondsey, and their colleagues made their points.
I give particular thanks to the right hon. and learned Member for Sleaford and North Hykeham, who after many years as a Back Bencher might have got a Minister to look at something again. Whether he gets the result he wants remains to be seen.

Dominic Grieve: Further to that point of order, Mr. Bercow, may I echo the thanks expressed to you and to the officers of the House who have made this Committee so pleasant and enabled us to get through the business so expeditiously? I extend my thanks to the Solicitor-General and to the Minister for the spirit in which they entered into the debate. I give a special thanks to my right hon. and learned Friend the Member for Sleaford and North Hykeham, who played a very important part in the debate, to other hon. Friends and to the other Opposition parties.

Simon Hughes: Further to that point of order, Mr. Bercow, I associate myself and my hon. Friend with those remarks. I add my thanks to our friends from Hansard whom the Minister may accidentally, but not intentionally I am sure, have omitted to mention. Rarely can such serious business on such important issues have been conducted so quickly. It was due to our having a short Bill that did not allow many amendments.

John Bercow: I am very grateful to the Minister and the Opposition spokesmen for their generous remarks about my role and, more importantly, about the wider contributions to the efficacy of this Committee. I want briefly to place on the record my personal thanks to the principal Clerk of the Committee, Dr. John Benger, ably assisted by Dr. Hannah Weston and Emily Commander.
I reiterate the thanks properly expressed by the hon. Member for North Southwark and Bermondsey to the Reporters, without whom we would not have a full and accurate record of our proceedings and whose contribution in that sense is literally indispensable. Tony Minichiello, Ken Gall and Adèle Dodd have done a magnificent job and I am very grateful to them.
As I was obliged to do, I allowed points of order to interrupt the process. I will now put the question.

Question put and agreed to.

Bill to be reported, without amendment.

Committee rose at four minutes past Eight o’clock.